This used to be the case. Until 1986 every
child born in this country automatically became an Australian
citizen at birthno matter who the parents were. Only children of
foreign diplomats and 'enemy aliens' did not become Australian
citizens.

The High Court is shortly to hear the case of
Plaintiff
S441/2003, in which a five year old girl born in Sydney will
challenge 1986 laws that restricted the automatic right to
citzenship at birth. The girl's parents fled anti-Sikh persecution
in India in 1997. She 'speaks with an Australian accent and thinks
Brett Lee is the best cricketer in the world'.(1) But if
her parents are denied refugee status they will be deported. And as
a 'non-citizen', their daughterdespite her birth in Australiawill
also have to leave.

Plaintiff
S441/2003 involves fundamental issues about Australian
identity that the High Court has never had to confront before. Most
important is whether there is an Australian 'nationality' protected
by the Constitutionseparate from 'citizenship' under the
Australian Citizenship
Act1948which
confers rights and freedoms that Parliament cannot touch.

The Citizenship Act was amended in 1986 to
remove automatic citizenship at birth from children of 'illegal'
immigrants and temporary visa holders, including visitors and
refugees. Now such children only become citizens if they are
'ordinarily resident' in Australia for the
first ten years of their lives.(2)

The High Court has been asked to
declare the 1986 amendment unconstitutional. The outcome is
not straightforward.

At the time of the 1986 amendment, there was
anxiety in the media about the number of illegal immigrants in
Australia.(3) There was also concern about 'contemptible
queue jumping' by parents who used the citizenship status of their
Australian-born infants to gain permanent residency and avoid
deportation. (4)

In Kioa (1985), the High Court noted
that 'the mere fact that prohibited immigrants have a child born to
them in Australia' did not entitle them to permanent
residence.(5) It also rejected the idea that the
citizenship of Australian-born children gave them a right to a
separate hearing before their parents could be deported. But 'the
possibility that such an argument might one day be successful was
enough to encourage precautionary legislative
change'.(6)

Also in 1985 the (then) Human Rights
Commission condemned the practice of expelling 'prohibited
non-citizens' who had Australian-born and therefore,
under the law then in force, Australian citizen children. This
amounted to the 'de facto deportation' of such children who were
denied the 'human right' available to other Australian citizens of
growing up in the country of their birth.

The Commission said these concerns could be
dealt with by removing citizenship from such
children.(7)

The Australian President of the International
Commission of Jurists and former leader of the New South Wales
Liberal Opposition, John Dowd, disagreed:

If you're born in a country, it's surely a
natural human right that you be allowed to remain here They ought
to realise that you can't talk about human rights at the same time
as you take them away from children.(8)

Despite this, the Federal Government accepted
the approach of the Human Rights Commission in the 1986
amendment.(9)

In Plaintiff
S441/2003 the High Court will have to decide:

Whether the 1986 amendment to the Citizenship Act was
authorised by the Australian Constitution, and

Even if the 1986 change was valid, whether 'non-citizen'
children born in this country have Australian 'nationality',
meaning they cannot be forcibly detained and deported under the
Migration Act.

The Australian Constitution authorises the
Federal Parliament to make laws with respect to various matters.
Commonwealth laws are only valid if they relate to one of these
matters.

The Constitution gives the Federal Parliament
power to make laws about 'immigration and
emigration'.(10) But Australian-born children are
unlikely to be 'immigrants' in the ordinary meaning of that word.
They have not 'migrated' to Australia, having 'arrived' from within this country rather
than entering from
outside. So it is doubtful that the 'immigration and
emigration' power can authorise laws about children born in this
country.

Parliament can make laws about
'naturalization',(11) or the process of becoming a
citizen. However, denying citizenship to Australian-born children
goes beyond the process of naturalization, or even
'de-naturalization'.

The High Court has held that there is a
'nationhood power' implied in the Constitution allowing the
Commonwealth to legislate for matters which are 'inherently
national'.(12) It is unclear whether this would
authorise the 1986 amendment. On one view it is not an inherent
function of a national government to deny citizenship to those born
within its territory who would otherwise qualify as members of the
national community. On the other hand, it would be plausible for
the High Court to decide that an ability to withhold citizenship
from locally-born children of foreign nationals is a necessary part
of a general 'nationhood' power.

The central question in PlaintiffS441/2003,
however, is likely to be whether Australian-born children of
illegal immigrants and temporary visa holders can be 'aliens' in
the sense used in section 51(19) of the Constitution. If children
born in this country cannot be 'aliens' there will be no specific
provision in the Constitution on which the 1986 law can be based.
The validity of the 1986 change to the Citizenship Act would then
depend on the untested and uncertain scope of the 'implied
nationhood' power. Moreover, if such children are not 'aliens' (or
'immigrants'), the Commonwealth will have no authority to forcibly
remove them from Australia under the Migration Act.

The record of the 1898 Constitutional
Convention reveals that the drafters of the Australian Constitution
deliberately omitted any authority for Federal Parliament to deny
the 'birthright' of State residents to membership of the new
Commonwealth. A proposal to include a general power over
'citizenship' in the Constitutionproviding a valid basis for
Parliament to grant or deny this status to whomsoever it pleasedwas
specifically rejected. Federal Parliament was only to have the
power to prevent immigrants or 'aliens' 'from the outside world' becoming
Australian nationals.(13)

There was no mention of any such issue in the
debate over the 1986 amendment to the Citizenship Act.

In Colev Whitfield (1988), the High
Court said that records of the Convention debates could be used in
interpreting the Constitution. But the 'subjective intention' of
the 'founding fathers' could not replace the 'ordinary and natural'
meaning of constitutional terms such as 'aliens'.

The difficulty in the case of PlaintiffS441/2003 is that
the 'ordinary and natural' meaning of the word 'aliens' in the
Constitution is far from clear.

The word 'alien' is not defined either in the
Constitution or in legislation. Under a former definition in the
Citizenship Act, it used to mean anyone who was 'not a British
subject, an Irish citizen or a protected person'. But this
definition became out of date for an independent Australian nation
and was removed in 1987without being replaced.

Plaintiff
S441/2003gives the High Court its first opportunity to
consider whether 'non-citizen' children born in Australia
are 'aliens' in the sense used in the Constitution. Until recently
the accepted description of an 'alien' under Australian law was
that of Chief Justice Gibbs in Pochi (1982):

Parliament can treat as an alien any person who
was born outside
Australia, whose parents were not Australians, and who has not been
naturalized as an Australian. (emphasis
added).(14)

In Taylor (2001) and Te and Dang (2002), three members
of the current High Court (Chief Justice Gleeson and Justices
Gummow and Hayne) said that Chief Justice Gibbs' statement in
Pochi remains good law
for Australia.(15) However, Chief Justice Gibbs'
description of who Parliament can treat as an 'alien' plainly did
not cover and left uncertain the status of non-citizens born within Australia.

In Te
and Dang (2002), Justice McHugh argued that Chief Justice
Gibbs' statement in Pochi (1982) meant that 'an alien
is any person who is a non-citizen'.(16) Similarly, in
Lim (1992), Justices
Brennan, Deane and Dawson suggested that 'the word "alien" in s.
51(19) of the Constitution had become synonymous with
"non-citizen"'.(17)

But in Australian constitutional law 'the
stream cannot rise above its source', (18)i.e. the
Commonwealth Parliament cannot control the limits of its own power.
Its 'source' of power is the Constitution. 'Alien' cannot simply
mean 'non-citizen' because this would allow Parliament through
citizenship legislation to determine the scope and extent of the
'aliens' power in s. 51(19) of the Constitution. As Justice Gaudron
said in Lim (1992),
'Citizenship is a concept which is entirely statutory (therefore)
it cannot control the meaning of "alien" in s. 51(19) of the
Constitution.'(19)

It was not until the recent decisions in
Taylor and Te and Dang that a majority of
the High Court tackled the false 'citizen/alien' dichotomy head on.
In Taylor (2001) four
judges on the High Court (Justices Gaudron, McHugh, Kirby and
Callinan) found that a citizen of the United Kingdom who migrated
to this country in the 1960s shared allegiance with Australians to
a common monarch. Despite never having become a citizen, Mr Taylor
was a subject of the Queen of Australia and could not be an 'alien'
for the purpose of this country's deportation laws. Instead he
belonged to a new class of Australian resident, the 'non-alien
non-citizen' (or 'non-removable
non-citizen').(20)

Central to the High Court's interpretation of
the 'aliens' power in the Constitution is the distinction between
'aliens' on the one hand, and 'natural-born' or naturalized
'subjects' on the other. The authors of the Australian Constitution
deliberately gave Federal Parliament a lesser power over
'naturalization and aliens' instead of a broader authority over
'citizenship'because, as South Australian delegate to the 1898
Convention Charles Kingston said, 'it is impossible to contemplate
the exclusion of natural-born subjects' from
membership of the new Federation.(21)

In Pochi (1982), Chief Justice
Gibbs referred to the long-standing common law rule that:

Natural-born subjects are such as are born
within the dominions of the crown of England; that is, within the
ligeance, or as it is generally called, the allegiance of the king;
and aliens, such as are born out of it.(22)

As Justice Kirby said in Te and Dang (2002), a key issue
arising from Taylor
(2001) is:

Who constitute the class of persons who are
not citizens, but are 'natural-born subjects' of the Crown in
Australia, like Mr Taylor, who are not 'aliens' within the
decision in that case?(23)

Based on ancient common law principles,
provided a child is born on Australian territory at a time when its
parents are within Australia's jurisdiction, it will be a
'natural-born subject' of Australia. In Calvin's Case
(1608),(24) Lord Coke said that for a child to be a
'natural-born subject' at common law rule required:

1. That the parents be under the actual
obedience of the King. 2. That the place of his birth be within the
King's dominion.(25)

Any person in Australia on some form of
temporary visa isas the conferral of the visa itself
indicateswithin Australia's jurisdiction, i.e. under the 'actual
obedience' of the Commonwealth. Any child of such a person born on
Australian territory will therefore be a 'natural born subject' of
Australia.

The same applies in the case of people in
Australia without a visa. Such people are within Australia's
jurisdiction and owe 'temporary or local allegiance' to the
sovereign authority of Australia, whether or not they acknowledge
this. This applies not only to unlawful non-citizens in detention
but to any person living illegally in this country. The only
exception in practice will be diplomatic and other visa holders
with immunity from Australian law.(26) In all other
cases, the parents will be under Australian jurisdiction while in
this country. Any children born here will therefore be
'natural-born subjects' and outside the common law and
constitutional meaning of 'alien'.

Other ways of defining 'non-aliens' for the
purpose of Australian constitutional law could be considered
besides referring to ancient common law. However it is doubtful
whether it is open to the High Court to abandon the common law
distinction between 'aliens' and 'natural-born subjects'. As the
Court has itself emphasised, while the practical application of
constitutional terms such as 'aliens' can vary from time to time,
the 'abstract meaning' or 'fixed
connotation'(27) of such words must remain the
same. If this were otherwise, there would be little point having a
Constitution whose terms are protected against alteration by
Parliament and which can only be changed through a referendum of
the people.

The 1898 Constitutional Convention and recent
High Court cases suggest that a distinction with 'natural-born' or
'Australian-born' subjects is part of the 'fixed connotation' of
the word 'alien' in its constitutional context.

In Mabo
vQueensland(No 2) (1992) Justice
Brennan emphasised the difficulty of moving away from common law
concepts:

Although this Court is free to depart from
English precedent which was earlier followed as stating the common
law of this country, it
cannot do so where the departure would fracture what I have called
the skeleton of principle.(28) (emphasis
added).

Ignoring the distinction with 'natural-born'
subjects would 'fracture the skeleton of principle' inherent in the
meaning of the word 'aliens' in section 51(19) of the Australian
Constitution.

As in Australia, United States constitutional
law on the issue of citizenship and nationality incorporates and
protects the English common law on 'alienage'. The Fourteenth
Amendment to the United States Constitutionintroduced after the US
Civil Warguarantees citizenship to anyone 'born in the United
States, and subject to the
jurisdiction thereof'. As the US Supreme Court explained, this
wording ensures that US constitutional law on citizenship
corresponds with common law notions of 'aliens' and 'natural-born
subjects'.(29) Only those beyond US jurisdiction, i.e.
'children born of alien enemies in hostile occupation, and children
of diplomatic representatives of a foreign State,'(30)
are denied automatic citizenship on birth in the United States.

A 1997 proposal put to the United States
Congress to limit citizenship by birth to children of citizens or
permanent residentsalmost identical to Australia's 1986
amendmentlapsed because of its inconsistency with the common law
concepts enshrined in the US Constitution.(31)

Unlike the United States Constitution, the
Australian Constitution contains no guarantee of citizenship for
those born in this country. But by including a power over 'aliens'
the Australian Constitutionas in the United Statesspecifically
incorporates and protects common law concepts inherent in this
term.

In the United Kingdom, in contrast to the
United States and Australia, there is no Constitution protecting
key principles from amendment by legislation. This has allowed the
British Parliament to override the common law right of any
'natural-born subject' of the United Kingdom to British
nationality. The British
Nationality Act 1981 is similar to, and indeed appears to have
been the model for, the 1986 amendments to Australia's Citizenship
Act, conferring citizenship on children born in the United Kingdom
only if one of their parents is a citizen or permanent resident, or
if they live in the United Kingdom for the first ten years of their
lives.(32)

Under Canada's Constitution the national
parliament of that country possesses the same power to make laws
concerning 'naturalization and aliens'(33) as conferred
on the Australian Parliament in section 51(19) of our Constitution.
It is relevant to Australia that cases on this power in the early
1900s held that persons born within Canada to foreign parents were
'natural-born subjects' of the Crown and not 'aliens' under
Canadian constitutional law.

If locally-born children such as the applicant
in Plaintiff
S441/2003 are not 'aliens', there will be some
important consequences. Most significantly the purpose of the 1986
amendment to the Citizenship Act will largely be negated. It may be
that the amendment itself is held to be invalid, returning
citizenship to children born in Australia since that date to
temporary visa holders and other non-permanent residents. But even
if the High Court decides that removal of citizenship from
'non-alien' children was constitutionally valid, they will remain
'non-aliens'. Except in the very limited cases acknowledged by the
common law, it appears to be beyond the power of Parliament and the
Commonwealth to treat locally-born children as 'aliens' without an
alteration to the Constitution.

If Australian-born children of 'illegal'
arrivals or temporary visa holders are neither 'aliens' nor
'immigrants' in the sense used in the Constitution, they cannot
validly be subject to the forcible detention and removal provisions
in the Migration Act.(34) The 'voluntary' detention and
deportation of the children (at the request of their parents) seems
constitutionally valid. But if parents facing deportation do not
want their Australian-born children in immigration detention, or if
they are willing and able to leave them behind in this country, the
Commonwealth will be unable under the Migration Act to detain or
deport the children.

Forcible detention by the Commonwealth of
children who are not 'aliens' or 'immigrants' would also contravene
the 'separation of powers' doctrine. A power of imprisonment is
conferred exclusively on Australian courts under Chapter III of the
Constitution. So any detention not authorised by deportation
provisions applying to 'aliens' and 'immigrants' can occur only as
a result of a court order. Such detention could not validly occur
because of an administrative order from an immigration official or
the Minister.

'Non-alien' status would also assist the
parents of Australian-born children. As Justice Gaudron observed in
Teoh (1995):

it is arguable that citizenship carries with
it a common law right on the part of children and their parents to
have a childs best interests taken into account, at least as a
primary consideration, in all discretionary decisions by
governments and government agencies which directly affect that
childs individual welfare (35)

Current High Court authority accepts that in
terms of the common law, 'natural-born subjects' are, like
citizens, members of the Australian body politic.(36) It
follows that if locally-born children of non-permanent residents
are 'natural-born subjects', they share the common law (as against
statutory) rights of citizens. This includes the right to have
their best interests taken into account as a primary consideration
in any administrative decision (i.e. by immigration officials,
tribunal or the Minister) concerning the fate of the families to
which they belong.

The Australian Government's official
instructions on deportation of parents reflect Justice Gaudron's
view that the best interests of Australian citizen children must be
considered. The various instructions direct immigration officials
to take into account the Australian citizen status of children when
considering the deportation of non-citizen parents.(37)
If the High Court decides that locally-born
children are 'Australian-born subjects' (or Australian
'nationals'), this should be reflected in the official instructions
regarding deportation of parents. Alongside citizenship and
permanent residency, immigration officials should be directed to
have regard to a child's constitutional nationality in deciding the
fate of parents. This should also be the case with the Minister's
discretionary power to intervene in deportation
cases.(38)

Many
decisions under the Migration Act are deemed to be 'privative
clause' decisions which are 'final and conclusive' and cannot be
challenged in any court.(39) However 'privative clauses'
banning further appeals are ineffective where a tribunal or similar
body has committed a 'jurisdictional error'(40) or has
exceeded 'constitutional limits'.(41) So the Migration
Act could not be used to prevent parents appealing to the Federal
or High Courts if the constitutional status of a child had been
ignored by a decision-maker.

Having a third national status to consider
alongside citizenship and permanent residency might be regarded as
unwieldy.

If the High Court decides in Plaintiff
S441/2003 that children born locally to non-permanent
residents are citizens or, if not citizens, 'natural-born subjects'
and therefore Australian 'nationals', there seems little point
retaining the current legislation. Such a decision by the High
Court would mean that there is a form of Australian nationality
derived from the common law on 'alienage' and protected by the
Constitution that cannot be removed without approval by the people
in a referendum. The failure to discuss constitutional issues in
1986 might provide Parliament with a reason to reconsider this
issue.

A decision on whether Parliament should
re-consider the legal status of children born in Australia would be
assisted by accurate information on the 'migration consequences' of
a child's citizen status. As Justice Brennan and John Dowd pointed
out at the time of the 1986 amendment, having a child born in
Australia never entitled the parents to permanent residency or
enabled them (without more) to avoid deportation. Information on
the number of people directly affected would also assist any
re-consideration. After the 1986 amendment came into force, the
Human Rights Commission, despite having recommended such a change,
queried whether it was really necessary to take citizenship away
from Australian-born children:

it is of the view that the risk can be
over-stated. It considers the suggestion that 'the floodgates'
might be opened is without foundation Allowing all of these persons
to stay would hardly constitute a trickle, let alone a
flood.(42)

The High Court has been asked to decide
whether children born in Australia have a constitutional right to
remain in this country. Not all such children are Australian
citizens. Children of temporary visa holders, refugees and others
without permanent residency do not receive citizenship at birth and
can be forcibly deported from Australia. In September 2003
Justice Kirby referred the case of Plaintiff
S441/2003involving a five-year-old girl born in
Australia to asylum seeker parentsto the full High Court. Justice
Kirby explained that the central issue is:

whether there is a constitutional status of
nationality quite apart from the statutory status of citizenship
and whether implied in that constitutional notion of nationality
being a subject of the Queen of Australia are certain irreducible
minimum protections.(45)

In late 2002 a group of East Timorese families
who had lived in Australia for up to a decade were told they were
to be deported.(46) The group included over 200 children
born in Australia since the families arrived in the early to
mid-1990s.(47) Deportation orders were applied to the
children without considering their status under Australian
constitutional law.

East Timor's new President Xanana Gusmao
queried why, unlike East Timor, birth in Australia conferred no
legal right to remain in this country:

We have this law as a new nation If an Indonesian
that was born in East Timor wanted to come back into the country, I
cannot deny him access. It's a basic human
right.(48)

Legislative changes in 1986 removed the
automatic right of anyone born in Australia to live here.
Amendments to the Australian Citizenship Act 1948
(the Citizenship
Act) meant citizenship was henceforth conferred only on
children born in Australia to citizens or permanent residents.

The amendment to the Citizenship Act in 1986
was specifically targeted at people without permanent residency
seeking a foothold in Australia through the birth of a child in
this country. It had two main aims: to prevent infant children
'sponsoring' their parents for permanent residency and to stop
parents using the fact that their citizen children could not be
expelled to prevent their own deportation.

The Minister for Immigration and Ethnic
Affairs in the then Labor Government, the Hon. Chris Hurford MP,
explained that:

Australia is one of the few remaining
countries which confers citizenship automatically upon a child born
here, unless one of its parents was at the time of its birth a
diplomat or a consular representative of a foreign country or an
enemy alien. This generosity in our law can be exploited by
visitors and illegal immigrants who have children born here in
order to seek to achieve residence in
Australia.(49)

Under
the amended Citizenship Act, children born in Australia to someone
who is not a citizen or permanent resident are not regarded
as citizens at birth and only become Australian nationals if
'ordinarily resident' in this country for the first ten years of
their lives.(50) As 'non-citizens' such children can be
forcibly detained and deported under the Migration Act
1958.(51)

The 1986 amendment was preceded by anxiety
about the cost to the community of the 'growing army of illegal
immigrants' in Australia.(52) Prominent newspaper
reports in 1985 referred to estimates of 50-60 000 'prohibited
non-citizens' in this country.(53)

In the same context the media highlighted a
High Court case involving two-year old Australian-born Elvina Kioa
whose Tongan parents had overstayed their temporary entry permits
and faced deportation. The Sydney Morning Herald said that
a 'crucial element [was] 'the weight that should be given to their
daughter, who was born here and is an Australian
citizen'.(54) The Kioas' lawyers argued that as a
citizen Elvina had a right to be heard on the matter of her
parents' deportation and to have her own interests taken into
account.(55)

The High Court in Kioa did not confer any
additional rights on Australian-born children. Elvina's status as a
citizen did not entitle her to a special hearing beyond the
representations made on behalf of her parents.(56) The
child's citizenship was 'a relevant consideration militating
against the making of deportation orders'(57) but, as
(then) Justice Brennan pointed out, 'it is not suggested that the
mere fact that prohibited immigrants have a child born to them in
Australia entitles them to permanent residence in
Australia'.(58)

Nevertheless, while the High Court rejected
the idea that the citizenship of Australian-born children entitled
them to a separate hearing before their parents could be deported,
'the possibility that such
an argument might one day be successful was enough to encourage
precautionary legislative change'.(59)

Strong criticism of the Federal Government's
deportation policies by the Human Rights Commission also
contributed to the 1986 amendment.

In a series of reports in 1985,(60)
the Commission condemned the practice of expelling prohibited
non-citizens who had Australian-born and therefore, under the law
then in force, Australian
citizen children. This amounted to the 'de facto deportation'
of such children 'who were forced in one way or another' to go with
their parents.(61)

The Commission said this contravened both the
International Covenant on Civil and Political Rights ('ICCPR') and
the United Nations Declaration of the Rights of the Child. The
'effective deportation of the family' deprived Australian-born
children 'of one of the principal rights associated with [their]
Australian nationality, namely, the right to be brought up in the
country of [their] birth'.(62)

The Commission said that only 'in extreme
circumstances' should an established family be 'broken by
deportation of one of its members, especially where there is an
Australian born citizen member child in the family.'(63)
The Commission noted, however, that 'nothing in the ICCPR or the
Declaration of the Rights of the Child requires the children of
prohibited non-citizens to become Australian citizens merely
because they are born in Australia'. To avoid treating
Australian-born children 'as if, in effect, they were not citizens,
with the result that their human rights are denied', the Commission
said that 'it may be fairer to change the rule that birth in
Australia automatically results in Australian citizenship for the
children of prohibited non-citizens.'(64)

The Federal Government adopted the
Commission's recommendation when introducing the 1986
amendment.(65) But the Government's legislation went
further, not only catching children of 'prohibited non-citizens'
but any child without a citizen or permanent resident for a parent,
whether or not the parents were legally in Australia at the time of
their child's birth.(66)

The 1986 amendment was enthusiastically
endorsed by the non-Government parties. According to the Opposition
Spokesman for Immigration and Ethnic Affairs, Liberal Alan
Cadman:

The Bill seeks to remove automatic citizenship
for children born in Australia of visitors, temporary entrants and
prohibited non-citizens, thus closing the loophole which has
allowed infants to sponsor their own parents There are instances of
pregnant women coming from overseas, having their child in
Australia and of that child then sponsoring the parent as a
permanent resident [P]arents who were illegal immigrants would
resist deportation on the grounds that the child who had
automatically gained Australian citizenship, needed the parents'
constant attention.(67)

Democrats leader, Senator Don Chipp, also
supported the change:

The conferring of citizenship by birth under the
present Australian Citizenship Act has been mercilessly exploited
by illegal immigrants and visitors who have deliberately had a
child in Australia so that those children may become permanent
residents and the parents can therefore become automatic citizens
of this country.(68) This loophole in our lawand this is
what it isallows contemptible queue jumping to the detriment of not
only those who are waiting all over the world to be processed for
entry into Australia but also the hundreds of thousands of people
living in Australia who are desperately seeking to bring their
loved ones to this country.(69)

The Australian President of the International
Commission of Jurists and former leader of the New South Wales
Liberal Opposition, John Dowd, was more critical. He queried
whether the change was necessary from a legal perspective, noting
that 'having a child born here is not a basis for staying here as a
matter of law'. Instead it was merely an argument that parents
facing deportation could put to immigration
officials.(70)

As for the suggestion that human rights
concerns could be ameliorated by changing a child's legal status,
he said:

If you're born in a country, it's surely a
natural human right that you be allowed to remain here. The fact
that your parents may have immigration problems ought not to make
the child the victim of the dispute between the parents and the
government they ought to realise that you can't talk about human
rights at the same time as you take them away from
children.(71)

Senator Chipp's hope that with the 1986
amendment 'the string of claims from parents that they cannot be
deported because their children were born here and therefore they
cannot be deported will cease'(72) did not take into
account the children's constitutional position.

The Migration Act 1958 'provides for
the removal or deportation from Australia of non-citizens whose
presence in Australia is not permitted by this Act'.(73)
On the face of it, therefore, a child who is born in Australia but
is not a citizen or permanent resident can be detained and deported
under the Migration Act.

However the Migration Actlike the Citizenship
Act and other Commonwealth legislationmust be linked to a source of
power in the Australian Constitution. The Migration Act relies on
the 'aliens' and 'immigration' powers in the
Constitution.(74) It follows that the Act cannot validly
apply to a person who is not an 'alien' or an 'immigrant'. In other
words, a person needs to be both a 'non-citizen' and either an 'alien' or an
'immigrant' in a constitutional sense before they can be validly
subject to the detention and deportation provisions in the
Migration Act.(75)

The debate in Parliament about the 1986
amendment to the Citizenship Act made no reference to any such
constitutional issue. The Parliament appeared to assume that
deeming certain Australian-born children to be 'non-citizens' in
itself enabled them to be deported, and that this was sufficient to
remove a key basis for appeals by the children's parents against
deportation.

Parliament's failure to discuss constitutional
issues when removing citizenship from some Australian-born children
is all the more surprising because the authors of the Australian
Constitution specifically intended that the Federal Government
should not have the power to pass any such law.

At the 1898 Constitutional Convention, Dr John
Quick (responsible with RobertGarranfor the authoritative Annotated Constitution of the
Australian Commonwealth)(76) proposed
that:

We ought either to place in the forefront of
this Constitution an express definition of citizenship of the
Commonwealth, or empower the Federal Parliament to determine how
federal citizenship shall be acquired, what shall be its
qualifications, its rights, and its privileges, and how the status
may hereafter be lost (77)

Other delegates to the 1898 Convention were
concerned, however, that the new Federal Government could use a
power over 'citizenship' to deprive 'British subjects' from other
parts of the Empire or residents of particular Australian States of
this status.

South Australian delegate Josiah Symon was
adamant that Federal Parliament should not be given such a power,
stating that this issue 'goes to the very foundation of the
Constitution which we are framing.' As he explained:

At the very root of the proposed Union is the
invitation to the citizens of the states to join the Federation,
and to obtain, as their reward, citizenship of the Commonwealth
what this Convention is asked to do is to hand over to the Federal
Parliament the power of taking away from us that citizenship in the
Commonwealth which we acquire by joining the
Union.(78)

Symon said that if the Federal Government was
given such a power, 'then I should feel that it was a very serious
blot on the Constitution, and a very strong reason why it should
not be accepted.'(79)

Richard O'Connor from New South Wales said the
proposed powers over 'immigration and emigration' and
'naturalization and aliens' provided more than sufficient control
over membership of the new Australian federation:

you have power to prevent any person from
entering any part of the Commonwealth, [so] you have also the power
to prevent any person from becoming a member of the Commonwealth
community It appears to me quite clear, as regards the right of any
person from the outside to become a member of the Commonwealth,
that the power to regulate immigration and emigration, and the
power to deal with aliens, give the right to define who shall be
citizens, as coming from the outside world...(80)

Similarly, Edmund Barton said that in giving
the Federal Parliament power over 'naturalization and aliens', 'we
give them power to make persons subjects of the British Empire.
Have we not done enough? We allow them to naturalize
aliens.'(81)

Dr Quick's proposal was defeated. No power to
make laws in relation to 'citizenship' was included in the
Constitution approved by the Australian people in a series of
referendums over 1898 and 1899. Indeed the Constitution contains no
reference at all to the concept of Australian
citizenship.(82)

The outcome of the 1898 Convention debate on
'citizenship' is of more than historical interest.

In Colev Whitfield (1988), the High
Court declared that the Convention debates could assist in
constitutional interpretation:

Reference to the [Convention debates] may be
made, not for the purpose of substituting for the meaning of the
words used [in the Constitution] the scope and effectif such could
be establishedwhich the founding fathers subjectively intended the
section to have, but for the purpose of identifying the
contemporary meaning of language used, the subject to which that
language was directed and the nature and objectives of the movement
towards federation from which the compact of the Constitution
finally emerged.(83)

As the statements of Symon and O'Connor at the
1898 Convention indicate, a not unimportant element in the movement
of the Australian states towards federation was a guarantee of
citizenship in the new Commonwealth. The new federal government was
not to have the power to deprive State residents of such status.
Under the immigration and 'naturalization and aliens' powers,
Federal Parliament could regulate the rights of aliens 'coming from
the outside world'including whether such people could be 'members
of the Commonwealth community' or citizens/subjects of the new
state. But the Commonwealth Parliament was denied a broader power
in relation to 'citizenship' generally. As Symon said:

the Commonwealth shall have no right to
withdraw, qualify, or restrict those rights of citizenship, except
with regard to one particular set of people who are subject to
disabilities, as aliens, and so on. Subject to that limitation, we
ought not, under this Constitution, to hand over our birth right as
citizens to anybody, Federal Parliament or any one else
...(84)

The possible sources of constitutional
authority for the 1986 legislation which deprived certain
Australian-born children of citizenship need to be considered in
this context.

In relation to membership of the new
Federation, the Commonwealth was left with an express power in the
Constitution over 'naturalization'.

Consistent with the principle in Colev Whitfield, the Convention
debates indicate the subject matter to which the naturalization
power was directed.

The debate at the 1898 Convention shows that
the contemporary meaning of 'naturalization' was the same as it is
now, i.e. the 'process of becoming a citizen'. The Citizenship Act
is clearly valid to the extent that it deals with this process.
Moreover, as Justice Gaudron pointed out in Nolan (1988), 'the power to
legislate with respect to naturalization seems necessarily to carry
with it a power to revoke the grant of
naturalization'.(85) So the Citizenship Act can provide
validly for 'de-naturalization', i.e. the removal of citizenship
from naturalized Australians.(86)

However, denying citizenship to
Australian-born children seems to go beyond 'naturalization' or
'de-naturalization'. It appears to involve exactly the kind of
'taking away' of citizenship from those otherwise entitled by birth
to this status that the framers of the Constitution wished to avoid
in restricting Parliament to the 'naturalization' power.

It seems unlikely therefore that the 1986
amendment to the Citizenship Act could be validly based on the
'naturalization' power in section 51(19) of the Australian
Constitution.

The authors of the two leading texts on
Australian citizenship law, Michael Pryles and Kim Rubenstein, both
refer to an 'implied nationhood power'(87) in the
Constitution that may give the Commonwealth authority to go beyond
naturalization to determine other aspects of citizenship, including
who has Australian nationality. As Pryles said:

it may be that the Commonwealth Parliament
possesses an inherent power to create an Australian national status
(Australian citizenship) and to determine who may hold that status
Australia has emerged from a federal colony to a sovereign nation
State at international law. It is arguable that there exists as an
inherent attribute of that position which Australia now enjoys a
power to create and define a national status for its
citizens.(88)

Rubenstein notes that while it is 'not clear
from judicial authority' that the Commonwealth can use such a power
to make laws about nationality and citizenship, the High Court has
endorsed the ability of the Commonwealth to legislate for other
matters which are 'inherently national'.(89)

It would seem to be inherent in the powers of
a national government to decree that people born within the nation
are formally to be considered 'citizens'. It would also seem
inherent in the functions of a national government to decree that
foreign nationals are not 'citizens' and can only become citizens
through a certain process. But it is doubtful whether the inherent
functions of a national government in relation to citizenship are
unlimited. It could be queried, for example, whether the Australian
Government inherently
has the power to exclude persons born within its territory and who
would otherwise qualify as members of the national community from
formal membership of the nation.

Using its power under the Constitution to make
laws in relation to 'immigration and emigration',(90)
the Commonwealth can validly prevent people who are still
'immigrants' (i.e. who have arrived in Australia but have not fully
settled in or been absorbed into the Australian community) from
becoming citizens.

Can Australian-born children be 'immigrants'
in the sense used in the Constitution?

The High Court has said that words in the
Constitution are to be given their 'ordinary and natural'
meaning.(91) The 'ordinary and natural' meaning of
'immigration' is the process of 'entering a country for temporary
or permanent purposes'.(92) Therefore only people who
have 'entered' Australia can be 'immigrants' in a constitutional
sense.

The Migration Act states that a child who was
a non-citizen when born in this country 'shall be taken to have
entered Australia when he or she was born'.(93) This
appears to bring non-citizen children born in this country within
the constitutional definition of 'immigrants'. However, using the
Migration Act to legislate that a person has 'entered' Australia
through childbirth is a legal fiction inconsistent with the
'ordinary and natural' meaning of the word. 'Entering' connotes
coming from outside,
whereas a child born in Australia has 'arrived' from within the country. So such
a child cannot have 'entered' Australia and cannot be an
'immigrant' in the normal sense of that word.

Consistent with Colev Whitfield, it is also relevant
that the framers of the Constitution saw the subject to which the
'immigration' power was directed as those 'coming from the outside
world' and that people born in Australia would necessarily be
beyond this power.

It is unlikely therefore that the 1986
amendment could be validly based on the 'immigration and
emigration' power in the Constitution.

The Constitution also gives the Commonwealth a
specific power to legislate in relation to
'aliens'.(94)

Those who carried the day at the 1898
Constitutional Convention plainly intended that Federal Parliament
should only have the power to prevent 'aliens from the outside world' becoming
Australian nationals. But the rule in Colev Whitfield states that the
'subjective intention' of the 'founding fathers' cannot be
substituted for the 'ordinary and natural' meaning of words in the
Constitution such as 'aliens'.

In the case of the 'naturalization' and
'immigration' powers, this is not an issue. The ordinary meaning of
those terms is clear. Reference to the Convention debates merely
confirms the subjects to which they were directed, in turn
indicating the boundaries within which those powers operate.

However the meaning of 'aliens' in Australian
constitutional law is far from plain. In recent cases the High
Court has been unable to agree on who comes within this
term.(95) If the ordinary meaning of 'aliens' can
include Australian-born children, the 1986 amendment will be
constitutionally valid, notwithstanding the clear intention of the
authors of the Constitution that Parliament should have no
authority to pass such legislation. If, on the other hand, children
born in this country are not 'aliens' there will be no specific
provision in the Constitution on which the 1986 law can be based.
The validity of the 1986 change to the Citizenship Act would then
depend on the untested and uncertain scope of the 'implied
nationhood power'.

Whether Australian-born children can be
classed as 'aliens' within the meaning of that term in the
Constitution is therefore a critical factor both for the
constitutional validity of action under the Migration Act affecting
such children and for the legality of the 1986 amendment itself.
The next section looks more closely at this issue.

The term 'alien' in section 51(19) of the
Constitution is not defined either in the Constitution itself or in
legislation. A definition of 'alien' was originally included in the
Citizenship Act when it commenced in 1948, but was removed in
1987.(96)

The case of Plaintiff
S441/2003gives the High Court its first opportunity to
directly consider whether 'non-citizen' children born in
Australia are 'aliens' in the sense used in the Constitution. The
various 'aliens' cases the Court has decided to date have all
involved people born overseas arguing that they were nevertheless
not 'aliens' under Australian constitutional law.

Inherent in the High Court's understanding of
the 'aliens' power in the Australian Constitution is the ancient
distinction between 'aliens' and 'natural-born subjects'. In
Pochi (1982), Chief
Justice Gibbs referred to the long-standing common law rule
that:

Natural-born subjects are such as are born
within the dominions of the crown of England; that is, within the
ligeance, or as it is generally called, the allegiance of the king;
and aliens, such as are born out of it.(97)

In Te
and Dang (2002) Justice Gummow cited as 'significant' the statement by
Lord Jowitt LC in Joyce
(1946) that 'the natural-born subject owes allegiance from his
birth, the naturalized subject from his naturalization, the alien
from the day when he comes within the realm.' (98)
Justice Callinan explained in Te and Dang that it was not
citizenship but allegiance to the sovereignas owed by a
'natural-born' or 'naturalized' subjectthat was the key to
membership of the Australian nation:

Although citizenship is a sufficient
condition for membership of the Australian body politic, it is not
a necessary condition. Judged from a constitutionalrather than a
statutoryperspective, the fundamental criterion of membership is
allegiance to the Queen of Australia.(99)

Justice McHugh in Taylor (2001) stated a direct
link between allegiance as a subject of the Queen of Australia and
non-alien status:

Once it is accepted that a person is the
subject of the Queen for the purpose of the Constitution, that
person cannot be an alien for the purpose of the Constitution. It
is not a matter of Australian citizenshipa term that the
Constitution does not usebut of the distinction that the
Constitution draws between a subject of the Queen and one who is
not, that is to say, an alien.(100)

Using the language of the current High Court,
if non-citizen children born in this country are 'natural-born' (or
'Australian-born') subjects of the Queen of Australia they cannot
be 'aliens' in the sense used in the Constitution. At first glance
the use of ancient common law concepts such as 'allegiance to the
sovereign' and 'natural-born subjects' to decide whether someone is
an 'alien' or a member of the national community seems out of place
in 21st century Australia. Yet as the above quotes show
these concepts have been at the core of recent High Court cases on
the 'aliens' question. Perhaps this is only because cases such as
Taylor centred on the
legal status of long-standing British migrants who settled in
Australia before a certain date.(101) But having
endorsed such concepts in recent casesincluding in Te and Dang to conclude that two
non-British applicants
were 'aliens' under Australian lawit seems difficult for the High
Court to deny their relevance in considering the constitutional
status of Australian-born children. As Justice Kirby said in
Te and Dang, a key
issue arising out of Taylor is:

Who constitute the class of persons who are
not citizens, but are 'natural-born subjects' of the Crown in
Australia, like Mr Taylor, who are not 'aliens' within the
decision in that case?(102)

It might be argued that the proper distinction
is not between 'aliens' and 'subjects of the Queen' (whether
'natural-born' or 'naturalized') but between 'aliens' and
'citizens'.

In Te
and Dang, Justice McHugh argued that the High Court in
Pochi (1982) and
Nolan (1988) 'held that
an alien is any person who is a non-citizen'.(103) And
in Lim (1992), Justices
Brennan, Deane and Dawson suggested that 'the word "alien" in s.
51(19) of the Constitution had become synonymous with
"non-citizen".'(104) What the High Court said in
Nolan, however, was
that the practical meaning of the word 'alien' had altered with the
emergence of Australia as an independent nation:

so that, while its abstract meaning remained
constant, it encompassed persons who were not citizens of this
country even though they might be British subjects or subjects of
the Queen by reasons of their citizenship of some other
nation.(105)

Recognition that 'aliens' in modern Australia
could include British subjects who had not become citizens was not
the same, however, as saying that the term automatically applied to
anyone who was not a citizen.

Similarly, what the High Court actually said
in Pochi (per Chief
Justice Gibbs) was that:

Parliament can treat as an alien any person who
was born outside
Australia, whose parents were not Australians, and who has not been
naturalized as an Australian.(106) (emphasis
added).

This principle was endorsed by the High Court
in Nolan, which
noted:

That definition should be expanded to include a
person who has ceased to be a citizen by an act or process of
denaturalization and restricted to exclude a person who, while born
abroad, is a citizen by reason of parentage.(107)

In Taylor (2001) and Te and Dang (2002), three members
of the current High Court (Chief Justice Gleeson and Justices
Gummow and Hayne) said that Chief Justice Gibbs' statement in
Pochi remained good law
for Australia.(108)

Chief Justice Gibbs' statement about who
Parliament can treat as an alienas modified by the Nolan courtencompasses most
non-citizens. But this is far from establishing that in Australian
law the words 'alien' and 'non-citizen' are synonymous. The
Pochi/Nolan principle
plainly does not cover and leaves uncertain the status of
non-citizens born
within Australia.

Moreover, as Justice Gaudron said in
Lim (1992),
'Citizenship is a concept which is entirely statutory (therefore)
it cannot control the meaning of "alien" in s. 51(19) of the
Constitution.'(109)

As Zines notes:

The power of the Commonwealth to confer
authority on members of the executive or administration is
restricted by the Constitution in two major respectsfirst, by the
principle of the separation of powers, and, secondly, by the
doctrine that no law can give power to any person (other than a
court) to determine conclusively any issue upon which the
constitutional validity of the law depends. The second doctrine is
sometimes metaphorically summed up in the maxim 'the stream cannot
rise above its source' (110)

Blackshield and Williams specifically link
this doctrine to the scope of the 'aliens' power in the
Constitution. They explain that:

the Commonwealth Parliament cannot control the
limits of its own power. Its 'source' of power is the Constitution.
Whether an enactment falls within an area of power granted to the
Parliament by the Constitution must ultimately be determined not by
the Parliament but by the High Court. This explains the
reservations expressed by Gaudron J as to how far the Parliament
could use its power in respect of 'aliens' to determine the legal
definition of 'aliens'.(111)

In other words, in Australian constitutional
law 'alien' cannot simply mean 'non-citizen' because this would
contravene the 'stream and its source' doctrine, i.e. it would
allow Parliament through citizenship legislation to determine the
scope and extent of the 'aliens' power in s. 51(19) of the
Constitution.

In addition, a discussion of the
constitutional scope of the word 'alien' cannot ignore its origins
in English common law as adapted for the modern Australia context.
As (then) Justice Brennan said in Mabo vQueensland(No 2) (1992):

Australian law is not only the historical
successor of, but is an organic development from, the law of
England Although this Court is free to depart from English
precedent which was earlier followed as stating the common law of
this country, it cannot do
so where the departure would fracture what I have called the
skeleton of principle.(112) (emphasis added).

Ignoring the distinction with 'natural-born'
subjects would 'fracture the skeleton of principle' inherent in the
meaning of the word 'aliens' in section 51(19) of the Australian
Constitution. This is not to say that anyone who would have been a
'natural-born subject' when the Constitution was drafted is a
'non-alien' in 2003. Clearly the reference point for 'subject' has
changed since Federation from the sovereign of the British Empire
to the sovereign authority of Australia, i.e. the 'Crown in right
of Australia'. So a 'natural-born' subject in current Australian
constitutional law might more correctly be referred to as an
'Australian-born' subject.

The practical application of constitutional
terms such as 'alien' may vary depending on the circumstances of
the time. So, for example, British nationals can now be classed as
'aliens' under Australian constitutional law even though this was
not the case at Federation. But the fundamental concepts or
attributes inherent in the meaning of words in the Constitution do
not change. AsJusticeDawsonsaid in Street (1989):

the words [in the Constitution] have a fixed
connotation but their denotation may differ from time to time. That
is to say, the attributes which the words signify will not vary,
but as time passes new and different things may be seen to possess
those attributes sufficiently to justify the application of the
words to them.(113)

The 1898 Constitutional Convention and recent
High Court cases suggest that a distinction with 'natural-born' or
'Australian-born' subjects is part of the 'fixed connotation' or an
essential 'attribute' of the word 'alien' in its constitutional
context.(114)

Not all children born in Australia will have
'natural-born subject' status.

In Taylor Justices Gummow and Hayne
stated that:

The common law rule in England was that 'all
persons born on English soil, no matter what their parentage, owed allegiance
to, and were therefore subjects of the king' (emphasis
added).(115)

But this quotation, from Holdsworth's 'A
History of English Law',(116) is an inaccurate summary.
It was not the case that children born in England were necessarily
'natural-born subjects'. The legal status of the parents made a
difference. As Pryles states:

the common law accepted as the general basis
of allegiance that of the jus soli (the place of birth)
rather than the jus
sanguinis (the allegiance of the parents). Of course there
were some exceptions. Thus, for example, children of foreign
ambassadors born within the King's dominions were not subjects
while children of British ambassadors born within foreign states
were subjects. Likewise children of members of an invading army or
of enemy aliens born within the King's dominions were not
considered to owe allegiance and were therefore not
subjects.(117)

In Calvin's Case
(1608)(118) Lord Coke set out the classic common law
rule regarding 'natural-born subjects':

There be regularly three incidents to a subject born. 1. That
the parents be under the actual obedience of the King. 2. That the
place of his birth be within the King's dominion. And, 3. The time
of his birth is chiefly to be considered; for he cannot be a
subject born of one kingdom that was born under the ligeance of a
King of another kingdom

any place within the King's dominions without obedience can
never produce a natural subject. And therefore if enemies should
come into any of the King's dominions, and surprise any castle or
fort, and possess the same by hostility, and have issue there, that
issue is no subject to the King, though he be born within his
dominions, for that he was not born under the King's ligeance or
obedience.(119)

Lord Coke's statement indicates that the
status of the parents
was critical in determining whether children born within the
territory of the sovereign were 'natural-born subjects'. The
parents had to be both within the territory and under the 'actual
obedience' of the King at the time of the birth of their child. In
modern terms, the parents had to 'owe allegiance to' or be 'within
the jurisdiction of' the sovereign authority of the nation for
their children to acquire 'natural-born subject' status. Since
invaders owed no obedience or allegiance to the King, any of their
children born within the King's territory could not be natural born
subjects.

What Lord Coke referred to as 'actual
obedience' of the parents is today known as 'local allegiance.' In
Te and Dang (2002),
Justice Callinan referred to 'the difference between natural
allegiance due from birth of a person born within
the king's dominion, and local allegiance such as may be owed by an
alien whose true allegiance lies elsewhere'.(120)
Justice Kirby explained that 'local allegiance is nothing more than
the duty of anyone in Australia to comply with
the Constitution and laws of this
country'.(121)

Chief Justice Gleeson noted in Te and Dang that:

an alien resident in Australia may become
subject to 'local allegiance' local allegiance is not incompatible
with the status of alienage. Allegiance and alienage are not
mutually exclusive.(122)

His Honour cited with approval the words of
Viscount Cave in Johnstone (1921):

No doubt a friendly alien is not for all
purposes in the position of a British subject. For instance, he may
be prevented from landing on British soil without reason given and
having landed, he may be deported, at least if a statute authorises
his expulsion But so long as he remains in this country with the
permission of the sovereign, express or implied, he is subject by
local allegiance with a subject's rights and
obligations.(123)

The fact that parents owe 'local allegiance'
to, or are within the jurisdiction of, the governing authority of
the nation does not alter their (i.e.the parents') national status. As
Justice Callinan explained in Te and Dang:

An obligation to obey the laws of Australia
extends to anyone within the territorial reach of Australian law,
no matter to whom the persons affected by them owe allegiance and
does not give rise to any national status.(124)

However 'local allegiance' on the part of the parent(s) is
sufficient to confer the status of 'natural-born subject' on
locally-born children.
In Wong Kim Ark(1898) the United
States Supreme Court explainedin a passage cited by Justice
Gummow in Te and
Dangthat:

Every citizen or subject of another country,
while domiciled here, is within the allegiance and the protection,
and consequently subject to the jurisdiction, of the United States.
His allegiance to the United States is direct and immediate, and,
although but local and temporary, continuing only so long as he
remains within our territory, is yet, in the words of Lord Coke, in
Calvin's Case 'strong enough
to make a natural subject, for if he hath issue here, that issue is
a natural-born subject'. (emphasis
added).(125)

Applying the common law concepts cited by the
High Court in cases such as Pochi (1982), Taylor (2001) and Te and Dang (2002), the following
children would be examples of 'natural-born' or 'Australian-born'
subjects under the Constitution.

The East Timorese refugees living in Australia
have 'local allegiance' to 'the sovereign authority of
Australia'.(126) On their arrival here they became
subject to the jurisdiction and laws of this country. They were
granted bridging visasin itself evidence that they had come within
Australia's jurisdiction. In Lord Coke's words, they have 'actual
obedience' to the Crown in right of Australia. They are not in the
position of invaders, 'enemy aliens' or diplomatic representatives
of foreign countries who are not subject to the control of
Australian legal authorities.

As Justice Callinan pointed out in Te and Dang, unless and until
they become naturalized the East Timorese refugees who arrived in
Australia in the 1990snotwithstanding their obligation to obey the
laws of Australiaare and will remain 'aliens' in a constitutional
sense. But according to the principles laid down in Calvin's Caseinherent in the
meaning of 'alien' under Australian constitutional lawany children
born in Australia to the East Timorese refugees are
'Australian-born subjects' and not 'aliens' within the meaning of
that term in section 51(19) of the Constitution.

The same applies to other children born in
Australia to any person granted a temporary visa. Whatever the
particular type of visa, the fact of its conferral appears to be
sufficient indication that a person who has entered Australia is
within Australia's jurisdiction and subject to the laws of this
country. This applies even for those temporary visas that are not
regarded as 'substantive' under the Migration Act.(127)
The only exception appears to be diplomatic and other visa holders
with immunity from Australian law.(128) In all other
cases, the holder of the visa owes 'actual obedience' to the laws
of Australia while in this country. Any children born here to such
people are therefore 'natural born subjects' of Australia and
outside the constitutional meaning of 'alien'.

Under the Migration Act, any non-citizen in
Australia without a visa is an 'unlawful
non-citizen'(129) who must be detained by immigration
officials(130) and removed from the country 'as soon as
reasonably practicable'.(131) But lacking a visa and
being an 'unlawful' resident who must be detained and deported does
not indicate that a person is outside Australia's jurisdiction.
Indeed it indicates the opposite. Australian authorities would
reject absolutely the notion that someone without a valid visa is
not subject to the laws of this country. As the Immigration Advice
and Rights Centre notes:

Unlawful non-citizens are subject to Australian
law while they are in Australia. If they break the law they can be
charged and if found guilty, fined or sentenced to jail. [Moreover]
Generally speaking, unlawful non-citizens are protected by the law
in the same way as Australian citizens or permanent
residents.(132)

Such people are within Australia's
jurisdiction and owe 'temporary or local allegiance' to the
sovereign authority of Australia, whether or not they acknowledge
this. This applies not only to unlawful non-citizens in detention
but to any person living illegally in Australia. Unlike enemy
invaders who would govern themselves within territory taken from
Australia, unlawful non-citizens living in this country are liable
to the control of Australian legal authorities, i.e. they are
'subject to the jurisdiction of' the Commonwealth.

Again, it follows that any children born in
Australia to such people satisfy the common law requirements for
'natural-born subjects' and therefore cannot be 'aliens' under
Australian constitutional law. This applies even to those parts of
Australian territory excised from Australia's 'Migration Zone' in
2001, including Christmas and Cocos Islands and other small atolls
and reefs off the coast of northern Australia.(133)
Whether or not they have access to the Migration Act with its
various appeal procedures, people who reach Australian territory
come under the Commonwealth's jurisdiction. Any children born on
such territory are therefore 'Australian-born subjects' in a
constitutional sense.

A conclusion that children born in Australia
to refugees, temporary visa holders and unlawful non-citizens are
'non-aliens'and so beyond the scope of the 'aliens' power in the
Constitutionis consistent with and follows logically from:

the deliberate inclusion by the framers of the
Constitution of the lesser power over 'naturalization and aliens'
instead of a broader authority over 'citizenship'for the very
reason, as South Australian delegate to the 1898 Convention Charles
Kingston said, that 'it is impossible to contemplate the exclusion
of natural-born subjects' from membership of the new
Federation(134)

the apparent acceptance by the current High Court that
an essential attribute or 'connotation' of the constitutional term
'aliens' is the distinction with the common law concept of
'natural-born subjects'

the notion that allowing 'natural-born' or
'Australian-born' subjects to be included within the meaning of
'aliens' would fracture the 'skeleton of principle' inherent in the
common law meaning of that term as incorporated in the Australian
Constitution

the doctrine that 'the stream cannot rise above its
source' which indicates that Parliament cannot use citizenship or
any other legislation to control the interpretation of 'aliens',
and

the fact that, as explained consistently by English and
Australian courts from the time of Calvin's Case (1608) through to
Taylor (2001) and
Te and Dang (2002),
temporary visa holders and other non-permanent residents have
'local allegiance' to Australia as soon as they come within
Australian jurisdiction, which is sufficient for any children born
on Australian territory to be 'natural-born subjects' and therefore
'non-aliens' under the Constitution.

Nevertheless it may be difficult to accept
that because of ancient common law notions children of temporary
visa holders and illegal immigrants must be classed as 'non-aliens'
under modern Australian constitutional law. On this basis any
non-citizen child born on Australian territory to a parent within
reach of the laws of this countryhowever temporary that may prove
to bewill be a 'non-alien'. Barring the unlikely event of a foreign
military invasion, the only exceptions in practice will be the
locally-born children of foreign diplomats resident in
Australia.

According 'non-alien' status to more or less
any child born in Australia plays to the type of fear expressed to
a 1994 citizenship inquiry by the Victorian Immigration Advice and
Rights Centre in opposing a return to pre-1986 laws:

people would come through on a transit visa, pop
into the airport, deliver a child and then move on. The child can
acquire citizenship and it also gives the parents certain rights
and entitlements.(135)

Chief Justice Gleeson noted the claim of the
applicants in Te and
Dang that they were 'members of the community constituting the
body politic of Australia' and therefore not 'aliens' under the
Constitution.(136) Using 'membership of the Australian
community' as the yardstick for determining 'alien' or 'non-alien'
status would allow differentiation between various classes of
non-citizen children born in Australia. The various levels of
'Australian membership' are described by Rubenstein(137)
and Dauvergne(138) and can be broken down into the
following broad categories:

those subject to Australia's jurisdiction and entitled
to the protection of its laws. This includes nearly everyone who
steps foot in Australia, with foreign diplomats being the only real
exception(139)

members of the social community: often but not always
linked to permanent residency, involving assurance of basic living
standards, including access to health care and education, and

political members: entitled to vote and stand for
election to Parliament and with full rights to enter and leave the
country at will. This category is largely reserved for Australian
citizens.(140)

Children born in Australia to 'unlawful'
migrants and to most short-term visa holders would qualify only for
the first category; the children of the East Timorese refugees
resident in Australia for up to a decade might be members of the
second; and only children who are born as Australian citizens (i.e.
with at least one parent who is a citizen or permanent resident)
would be members of the third category.

However an 'alien/member of the Australian
community' distinction would contravene 'the stream cannot rise
above its source' doctrine.

Membership of the Australian community at a
practical level is determined by a variety of Commonwealth laws.
The Migration Act with its control over entry into and residency
status in Australia 'is the principal legal framework determining
who will be admitted to the community and who will be
excluded.'(141) A range of other legislation, including
the Citizenship Act, the Social Security Act 1991 and the
Commonwealth Electoral Act
1918, decides who qualifies within that community as 'ordinary
members, 'social members' and 'political
members'.(142)

In other words, contrary to the 'stream and
its source' doctrine, Parliament could control the scope of the
constitutional term 'alien' through legislation determining the
various categories of membership in the Australian community.

While 'membership of the community' is a
useful template for describing the different levels of access that
residents of Australia have to social and political benefits, it
does not provide particular assistance in the constitutional
interpretation of the term 'alien'. As Chief Justice Gleeson said
in Te and Dang, 'I
find it difficult to understand what this contention [that Mr Te
was a member of the Australian body politic] adds.' If Mr Te was
not already outside

the constitutional category of a person whom
parliament is entitled to treat as an alien, then it does not
advance the matter to construct an antonym for 'alien' and assert
that it covers the prosecutor.(143)

Chief Justice Gleeson noted that in Taylor (2001) Justice Kirby
(with some support from Justice Callinan):

explicitly referred to the absorption into the
Australian community of a class of persons (British subjects) as a
reason for treating them as beyond the aliens power as well as
beyond the immigration power.(144)

Justice Kirby argued that allowing absorption
to transform 'aliens' into members of the Australian community was
important to prevent deportation in 'extreme cases', such as 'the
position of a person, long resident in Australia, purportedly
excluded from citizenship as a result of discriminatory or
restrictive laws enacted by the Parliament.'(145)

Use of the 'absorption' concept to determine
'alien' or 'non-alien' status would also permit differentiation
between the various classes of non-citizen children born in
Australia. Children of 'unlawful' non-citizens and most temporary
visa holders would not qualify as 'non-aliens'. Almost by
definition, the families of such children would not be regarded as
'absorbed' into the Australian community.

The circumstances of the East Timorese
children, on the other hand, may amount to the type of 'extreme'
case justifying use of Justice Kirby's 'absorption' doctrine. The
children faced deportation only because the Commonwealth delayed
processing their families' refugee claims through lengthy and
unsuccessful litigation,(146) and because of previous
changes to legislation denying them citizenship at birth and
removing the option of an 'absorbed person's visa'.(147)
Moreover, in the case of at least some of the children, a further
short period in Australia would automatically mean citizenship and
protection against deportation.(148)

But the majority in Taylor and Te and Dang rejected Justice
Kirby's absorption doctrine, stating that alien status could only
be lost through the formal process of becoming an Australian
citizen and that absorption made no difference. 'Resident aliens
may be absorbed into the community, but they are still aliens',
said Chief Justice Gleeson.(149) Justice Gaudron
explained that:

an alien born person may acquire membership of
the Australian body politic and, thereby, cease to be an alien only
in the circumstances and in accordance with the procedures [i.e.
naturalization] specified by the [Citizenship]
Act.(150)

A fundamental obstacle to an alternative way
of defining 'non-aliens', whether by 'membership of the community'
or 'absorption'or through an absolute 'citizen/alien' dichotomyis
the need to abandon the common law distinction between 'aliens' and
'natural-born subjects'. Under any of these alternative approaches,
some 'Australian born subjects' will miss out on being
'non-aliens'. Only if ancient common law notions inherent in the
drafting of section 51(19) of the Constitution are discarded could
children born in this country as 'Australian-born subjects' be
classed as 'aliens'.

It might be queried whether it is open to the
High Court to do this. Indications from the Court itself that a
'fixed connotation' of the word 'alien' is the distinction with a
'natural-born subject', plus Justice Brennan's injunction in
Mabo v Queensland (No
2) (1992) against fracturing the 'skeleton of principle'
underlying Australian law, suggest that it is not.

United States

As in Australia, United States constitutional
law on the issue of citizenship and nationality incorporates the
English common law on 'alienage'.

The constitutional right of people born within
United States territory to citizenship is an issue at the heart of
that country's history. The decision of the United States Supreme
Court in DredScott (1857) that no
person of African descent could be a citizen was an important part
of the background to the American Civil War. After the Civil War
the United States Congress and the States adopted the Fourteenth
Amendment to the United States Constitution guaranteeing that 'All
persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of
the State where they reside'. The current US Immigration and
Nationality Act reflects this constitutional provision, granting
citizenship to all persons 'born in the United States, and subject
to the jurisdiction thereof'.(151)

During the debates on the 1866 Civil Rights
Actwhich incorporated the provisions on citizenship in the
Fourteenth Amendmentthe Chair of the Congressional Judiciary
Committee said the Act was 'merely declaratory of what the [common]
law now is', observing that:

Every person born within the United States, its
Territories and districts, whether the parents are citizens or
aliens, is a natural-born citizen in the sense of the Constitution,
and entitled to the rights and privileges appertaining to that
capacity.(152)

As the United States Department of Justice
noted in evidence to a Congressional Committee in 1997, the US
Supreme Court in Wong Kim
Ark (1898) established that 'the language of the Constitution,
as it relates to citizenship, must be interpreted in light of the
common law.'(153) The Fourteenth Amendment had been
worded specifically to ensure that US constitutional law on
citizenship corresponded with common law notions of 'aliens' and
'natural-born subjects'. As the Supreme Court said:

The real object in qualifying the words 'all
persons born in the United States', by the addition, 'and subject
to the jurisdiction thereof,' would appear to have been to exclude,
by the fewest and fittest words, (besides children of members of
the Indian tribes, standing in a peculiar relation to the National
Government, unknown to the common law,) the two classes of
caseschildren born of alien enemies in hostile occupation, and
children of diplomatic representatives of a foreign Stateboth of
which by the law of England, and by our own law had been recognized
exceptions to the fundamental rule of citizenship by birth within
the country.(154)

Under the Fourteenth Amendment, only those who
were 'aliens' under the common law were excluded from automatic
citizenship at birth, 'with the single additional exception of
children of members of the Indian tribes owing direct allegiance to
their several tribes'.(155)

Even this exception followed the logic of the
common law. In 1866, when the Fourteenth Amendment came into force,
'it was perceived that Indians owed their allegiance to their
tribe, not the U.S., (therefore) they were not under the obedience
of the U.S.'(156) In accordance with the common law on
'alienage', children of people who were not under the 'actual
obedience' of the United States could not be 'natural-born
subjects' of that country.

Incorporation into the US Constitution of
common law principles concerning 'aliens' and 'natural-born
subjects' means those principles still restrict legislative
attempts to alter rights to citizenship and membership of the US
body politic. A 1997 proposal to limit citizenship by birth to
children of citizens or permanent residentsalmost identical to
Australia's 1986 amendmentlapsed because of its inconsistency with
common law concepts enshrined in the US Constitution:

This proposed legislation is unquestionably
unconstitutional The unmistakeable purpose of [the Fourteenth
Amendment] was to constitutionalize the Anglo-American common law
rule of jus soli or citizenship by place of birth By excluding
certain native-born persons from U.S. citizenship, the proposed
legislation impermissibly rescinds citizenship rights that are
guaranteed to those persons by the Fourteenth Amendment. Such a
rescission of constitutionally protected rights is beyond
Congress's authority.(157)

Unlike the United States Constitution, the
Australian Constitution contains no guarantee of citizenship for
those born in this country. But as noted above a power to make laws
about 'citizenship' was deliberately left out of the Australian
Constitution because of a fear that 'natural-born subjects' might
be denied their 'birthright' to full membership of the new nation.
The Australian Parliament was only to be given authority to
determine the rights of 'aliens coming from the outside world'. And
by including a power over 'aliens' the drafters of the Australian
Constitutionas in the United Statesspecifically incorporated and
protected common law concepts inherent in this term.

United Kingdom

Under the British Nationality Act 1981,
children born in the United Kingdom from 1983 onwards are British
citizens only if one of their parents is a citizen or permanent
resident. Other children born in Britain become British citizens if
they have lived in the United Kingdom for the first ten years of
their lives.(158) The 1986 amendments to Australia's
Citizenship Act appear to have been based on the 1981 British
legislation.

Unlike other common law countries, there is no
Constitution in the United Kingdom limiting the meaning of key
terms in legislation. Therefore the ability to deport people or to
deprive them of nationality is not restricted to those who come
within specific heads of power in a constitutional document.

In other words,
whatever the common law may say about the status of people born in
the United Kingdom, this is to no avail if legislation defines such
people as non-citizens and permits them to be deported. So there
would be little point in arguing that children born in Britain but
deemed to be non-citizens under the British Nationality Act cannot
be deported because they are 'natural-born subjects' under the
common law.(159)

Under current Canadian and New Zealand law,
there is no issue regarding the legal status of children born
locally to temporary visa holders or 'unlawful non-citizens'. In
both countries such children are automatically
citizens.(160) In Canada and New Zealand only children
outside the common law definition of 'natural-born subjects' are
excluded from citizenship 'by virtue of birth'. For example, the
New Zealand Citizenship Act
1977 states that a person shall not be a citizen by birth
if:

His mother or father was a person upon whom
any immunity from jurisdiction was conferred by the Diplomatic
Privileges and Immunities Act or in any other way, and neither of
his parents was a New Zealand citizen; or

His father and
mother were enemy aliens and the birth occurred in a place then
under occupation by the enemy.(161)

Such exceptions seem
archaic without an awareness of the basis at common law for
distinguishing between 'natural-born subjects' and 'aliens'. The
origin of citizenship legislation in the common law on 'alienage'
explains why legislation in New Zealand (and in Australia) still
denies citizenship to people born within the country to parents who
are 'enemy aliens'.(162)

Until 1986 Australia's approach was similar to
the current position in Canada and New Zealand. Someone born in
Australia as a 'natural-born subject' had full rights to
citizenship. The only people treated as 'non-citizens' were those
regarded under the common law as 'aliens'.

Under Canada's Constitution the national
parliament of that country possesses the same power to make laws
concerning 'naturalization and aliens'(163) as conferred
on the Australian Parliament in section 51(19) of our
Constitution.

Cases on the Canadian 'aliens' power are
relevant to the current consideration of the constitutional status
of Australian-born children in Plaintiff
S441/2003.

In the early 1900s Canadian provinces passed
laws restricting the legal rights of non-Europeans, arguing that
such people did not come within the exclusive 'aliens' power of the
Dominion Government in Ottawa. Cases challenging these laws
demonstrate that persons born within Canada to foreign parents were
regarded under Canadian constitutional law as 'natural-born
subjects' of the Crown.

In Cunningham (1903), the Privy
Council upheld a law of British Columbia stipulating that 'no
Chinaman, Japanese, or Indian shall have his name placed on the
register of voters for any electoral district, or be entitled to
vote at any election'. The Earl of Halsbury commented that:

The first observation which arises is that
the enactment, supposed to be ultra vires and to be impeached
upon the ground of its dealing with alienage and naturalization,
has not necessarily anything to do with either. A child of Japanese parentage born
inVancouverCityis a natural-born subject of the
King, and would be equally excluded from the franchise.
(emphasis added)(164)

As 'natural-born subjects', the locally-born
children of foreigners resident in Canada were outside the scope of
a federal legislative power identical to that in the Australian
Constitution. In Quong-Wing (1914) the Canadian
Supreme Court noted in relation to a law passed by the Province of
Saskatchewan that:

if the enactment in question had been
confined to Orientals who are native-born British subjects it would
have been impossible to argue that there was any sort of invasion
of the Dominion jurisdiction under [the 'aliens' power in the
Canadian Constitution].(165)

If the High Court decides that Australian-born
children are not 'aliens' the constitutional basis for the 1986
legislation depriving them of citizenship will be shaky at best.
Since the 'immigration' power is unlikely to provide a source of
authority, there would then be no specific head of power in the
Constitution validating the 1986 amendment. The Commonwealth would
instead have to rely on the 'implied nationhood' power to justify
the current law. This could go either way. On one view it is not an
inherent function of a national government to deny citizenship to
those born within the national territory. On the other hand, it
would be plausible for the High Court to decide that an ability to
withhold citizenship from locally-born children of foreign
nationals is 'necessary to give effect to the Commonwealth as a
national government'(166) and that it is therefore
within the Commonwealth's power to make laws for this
purpose.(167)

If the High Court decides that the 1986
amendment validly removed citizenship from Australian-born
children, it will still need to determine whether the children are
entitled to constitutional protection as 'non-alien non-citizens'.

In Taylor (2001) four judges on the
High Court (Justices Gaudron, McHugh, Kirby and Callinan) found
that a citizen of the United Kingdom who migrated to this country
in the 1960s shared allegiance with Australians to a common
monarch. Despite never having become a citizen, Mr Taylor was a
subject of the Queen of Australia and could not be an 'alien' for
the purpose of this country's deportation laws. Instead he belonged
to a new class of Australian resident, the 'non-alien non-citizen'
(or 'non-removable
non-citizen').(168)

Apart from British nationals who settled in
Australia before a certain date, Justice Gaudron and her colleagues
were unsure who else might be included in this new category.

If the High Court finds that the common law
distinction with a 'natural-born subject' remains inherent in the
meaning of the word 'alien' in the Constitution, it must follow
that locally-born children of temporary visa holders and other
non-permanent residents are part of the new category.

If the High Court decides that such children
are 'Australian-born subjects' and not 'aliens', the Commonwealth
might consider a legislative response.

However, as Justice Gaudron pointed out in
Nolan (1988), there are
strict limits on how the Commonwealth can transform a person's
status from 'non-alien' to 'alien':

Parliament [cannot] expand the ['aliens']
power by constituting a non-alien an alien if there has not been
some relevant change in the relationship between that person and
the community constituting the body politic of Australia,
including, e.g., the abandonment of membership of the community, or
the acquisition of membership of some other nation
community.(169)

As her Honour emphasised in Taylor:

Absent any such change, the law could not be
classified as a law with respect to naturalisation or aliens, for
that power is wholly concerned with the relationship of individuals
to the Australian community.(170)

In other words, since Parliament has no power
to subject a person who is a 'non-alien' to a law about aliens,
there needs to be a change in the relationship of such a person
with Australia before the 'aliens' power can be used to impose such
a status on them.

One way that relationship could change is
through a statement of allegiance to a foreign power. As Justice
Gaudron said (in relation to whether 'non-alien' British subjects
who settled in Australia before a certain date could be treated as
'aliens'):

Parliament might, for example, legislate to
define 'alien' to include persons who, although not aliens prior to
1987, have since taken action to acknowledge their allegiance to
the United Kingdom or to assert their rights and privileges as one
of its citizens.(171)

As Rubenstein says, this statement:

suggests that a positive act expressing
allegiance to another country may be a constitutionally acceptable
basis upon which to deprive a person of his or her non-alien
constitutional status.(172)

Most children born in Australia to foreign
citizens will be entitled to the same nationality as their parents.
For example, children born in Australia to East Timorese refugees
are accorded East Timorese nationality under the law of that
country.(173) But this does not appear sufficient in
itself for the Australian Parliament to treat such children as
'aliens'. As Justice Gaudron said in Taylor, 'a person is not
necessarily excluded from membership of the Australian community by
reason of his or her being a citizen of a foreign
power'.(174) Even if they have foreign nationality,
locally-born children would still need to make a statement ofallegiance to another country or
a declaration ofalienage from
Australia before they could be treated as 'aliens' under Australian
constitutional law.

The children as 'minors' lack the legal
capacity to make any such statement or declaration. As Justice
Kirby said in Te and
Dang, children are 'unable to formulate the will to renounce
allegiance to one country and to declare it for
another'.(175) In addition, as Justice Gummow pointed
out in Kenny (1993),
'the "stern rule" of the common law was that a natural born subject
could not divest himself of that status by his own unilateral
act'.(176) Combining these two points, Justice Kirby
noted that:

Change of allegiance could not, at least
ordinarily, be left to the subjective inclination of the
individual, still less of a minor in the care of his or her parent.
A change of allegiance normally involves reciprocal conduct by a
formal and public act, signifying the solemn change
(177)

The Citizenship Act allows the Minister to
accept a declaration renouncing Australian citizenship by persons
over 18.(178) But the status of 'non-alien non-citizen'
or 'natural-born subject' is not recognised in Australian
legislation. So even if an affirmation or declaration renouncing
Australian subject status by or on behalf of the children were
legally effective, there is no provision for a reciprocal process
acknowledging this under current Australian citizenship laws.

Except in the very limited cases acknowledged
by the common law, it seems that it is beyond the power of
Parliament and the Commonwealth to treat locally-born children as
'aliens' without an alteration to the Constitution. The only way to
bring such children within the Migration Act and other Commonwealth
legislation appears to be to include a specific power in the
Constitution giving the Federal Government authority to make laws
in relation to 'citizenship'.(179) It would then be
beyond question that laws depriving 'Australian-born subjects' of
citizenship and providing for the deportation of any 'non-citizen'
would be constitutionally valid.

In Lim (1992) Justices Brennan,
Deane and Dawson noted that the 'aliens' power in the Constitution
not only authorised:

laws providing for the expulsion or deportation
of aliens by the Executive but extends to authorizing the Executive
to restrain an alien in custody to the extent necessary to make
the deportation effective.(180)

If Australian-born children of 'illegal'
arrivals or temporary visa holders are neither 'aliens' nor
'immigrants' in the sense used in the Constitution, they cannot
validly be subject to laws such as the Migration Act based on these
heads of power. In other words, the forcible detention and removal
provisions in the Migration Act(181) cannot be used
against 'non-alien' 'non-immigrant' children even if the High Court
decides that they are not Australian
'citizens'.(182)

Forcible detention of 'non-alien' children
would also breach the 'separation of powers' doctrine in the
Constitution. A power of imprisonment is conferred exclusively on
Australian courts under Chapter III of the Constitution. Any
detention not authorised by deportation provisions applying to
'aliens' and 'immigrants' can therefore only occur as a result of a
court order. Detention by the Commonwealth of children who are
citizens or 'non-alien non-immigrants' would contravene the
separation of powers doctrine and be constitutionally invalid. As
the High Court stated in Lim:

the citizens of this country enjoy, at least in
times of peace, a constitutional immunity from being imprisoned by
Commonwealth authority except pursuant to an order by a court in
the exercise of the judicial power of the
Commonwealth.(183)

On the other hand, the 'voluntary' detention
and deportation of 'non-alien' children seems constitutionally
valid. The Migration Act allows the Minister or an immigration
official to deport dependent children at the request of a deportee
or their spouse.(184) Use of this power to detain and
deport Australian-born children might be regarded as 'reasonably
incidental' to the deportation of 'alien' parents, therefore coming
within the constitutional authority of the
Commonwealth.(185)

If the outcome of Plaintiff S441/2003 is that
Australian-born children are either 'citizens' or 'non-alien
non-citizens', the
most important question is whether this helps their family contest
deportation from Australia.

A link
between the position of the children and grounds of appeal for the
parents against deportation is provided by the United Nations Convention on the
Rights of the Child. Article 3(1) of the Convention
states:

In all actions concerning children, whether
undertaken by public or private social welfare institutions, courts
of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.

Australian cases on the Rights of the Child Convention,
however, have not produced clear legal authority. The Convention was ratified by the
Australian Government in 1991 but has yet to be enacted as domestic
law.(186) Nevertheless, in Teoh (1995), where a Malaysian
citizen with three Australian-born children appealed against
deportation, the High Court said that the mere ratification of the
Convention:

results in an expectation that those making
administrative decisions in actions concerning children will take
into account as a primary consideration the best interests of the
children and that, if they intend not to do so, they will give the
persons affected an opportunity to argue against such a
course.(187)

More recently, however, the present High Court
has strongly criticised the decision in Teoh, focussing on the lack of
domestic legislation
implementing the
Rights of the Child Convention.Lam (2003) involved the expulsion of a Vietnamese national
with two locally-born children. The High Court held that a failure
by immigration officials to contact the carer of the children in
order to assess their best interests in accordance with the
Convention did not invalidate the deportation
order.(188) Justices McHugh and Gummow criticised
the Teoh Court for
holding that 'un-enacted international obligations' could impose
'mandatory relevant considerations' on decision-makers, describing
this as a 'curiosity' that could only be sustained by 'erratic'
reasoning.(189)

After Lam, it would be dangerous for
parents to rely on the Rights of the Child Convention
to argue that the best interests of their children (Australian-born
or otherwise) should be given priority in decisions on their own
deportation.(190)

However the status of locally-born children as
citizens or 'Australian-born subjects' may require their 'best
interests' to be taken into account, notwithstanding rejection by
the High Court of the relevance of the Rights of the Child
Convention.

AsJusticeGaudronobserved in Teoh:

I consider that the Convention is only of
subsidiary significance in this case. What is significant is the
status of the children as Australian citizens. Citizenship involves
more than obligations on the part of the individual to the
community constituting the body politic of which he or she is a
member. It involves obligations on the part of the body politic to
the individual, especially if the individual is in a position of
vulnerability In my view, it
is arguable thatcitizenship carries with it acommon law right on the part
of children and their parents to have a childs best interests taken
into account, at least as a primary consideration, in all
discretionary decisions by governments and government agencies
which directly affect that childs individual welfare, particularly
decisions which affect children as dramatically and as
fundamentally as those involved in this case (emphasis
added).(191)

Since citizenship is an 'entirely statutory'
concept,(192) any common law right to have a child's
best interests taken into account must arise, as Justice Gaudron
indicates, from the nature of the citizen as a 'member of the body
politic' of Australia. Current High Court authority accepts that in
terms of the common law, 'natural-born subjects' are necessarily
members of the Australian body politic.(193) It follows
that if locally-born children of the East Timorese refugees and the
children of other non-permanent residents are natural-born
subjects, they share the common law (as against statutory) rights
of citizens. This includes the right to have their best interests
taken into account as a primary consideration in any administrative
decision (i.e. by immigration officials, tribunal or the Minister)
concerning the fate of the families to which they belong.

The Australian Government's official
instructions on deportation of parents reflect Justice Gaudron's
view that the best interests of Australian citizen children must be
considered. Directives issued by the Minister for Immigration
require immigration officials to balance the 'best interests of the
child' against a range of other factors in deportation
cases.(194) The directives are structured so the 'best
interests of the child' are not automatically put ahead of other
considerations when a parent faces expulsion from
Australia.(195)

One factor immigration officials are directed
to take into account is a child's national status. General Direction No 9
(concerning 'criminal deportation') states that in considering the
best interests of the child 'regard should be had to whether the
child is an Australian
citizen or permanent
resident.'(196) Similarly, the guidelines for use
of the Minister's discretionary power to intervene in deportation
cases state that the Minister must take into account circumstances
indicating 'irreparable harm and continuing hardship to an
Australian family unit
(where at least one member of the family is an Australian citizen or Australian permanent
resident).'(197)

A finding by the High Court that locally-born
children are not citizens but are 'Australian-born subjects'
should be reflected in Ministerial directives regarding deportation
of parents. Alongside citizenship and permanent residency,
immigration officials should be directed to 'have regard to' a
child's natural-born subject status in deciding the fate of
parents.

This should also be the case with the
Minister's discretionary power to intervene in deportation cases.
If families with children who are 'alien' permanent residents can
be regarded as 'Australian family units', the same should apply to
families with 'non-alien' children who are 'Australian-born
subjects'.

Failure by an immigration official or
tribunal(198) to take into account the status of
locally-born children as citizens or 'Australian-born subjects' may
allow parents to seek judicial review both at common law and under
statute.(199) While the Ministerial directives do not
currently refer to 'Australian-born subjects', it would be
difficult to argue that having a child with constitutional
protection against deportation is irrelevant to the fate of a
parent under the Migration Act.

A
recent amendment to the Migration Act(200) provides that
'privative clause' decisions under the Act are 'final and
conclusive' and cannot be challenged in any court. On this basis,
if submissions from parents arguing against deportation are
rejected by the Refugee Review Tribunal or the Migration Review
Tribunal, the matter could not be taken any further.

However 'privative clauses' banning
further appeals are ineffective where a tribunal or similar body
has committed a 'jurisdictional error'(201) or has
exceeded 'constitutional limits'.(202) So the Migration
Act could not be used to prevent parents appealing to the Federal
or High Courts if the constitutional status of a child had been
ignored by a decision-maker.

No
appeal appears possible, however, if the Minister fails to consider
a child's constitutional status when refusing to allow families to
remain inAustralia. InEx Parte S134 (2003), the High
Court said the Minister's refusal to use his discretionary power
under section 417 of the Migration Act was not reviewable:

s 417(7) states in terms that the Minister
does not have a duty to consider whether to exercise the power
conferred by s. 417(1). That gives rise to a fatal conundrum. In
the express absence of a duty, mandamus would not issue without an
order that the earlier decision of the Minister be set aside.
Further, in that regard, there would be no utility in granting
relief to set aside that earlier decision where mandamus could not
then issue.(203)

In practice this means deportees can only
appeal against the decision of the relevant tribunal, not that of
the Minister. As the High Court said:

Given that there is no duty on the Minister to
consider an application that he substitute a more favourable
decision under s. 417(1) of the Act the prosecutors' only right is
to have their visa applications determined by the Tribunal in
accordance with law, which right is secured by the relief with
respect to the Tribunal's decision.(204)

The case of Plaintiff
S441/2003 is about Australian identityabout which children born
in this country should formally be regarded as 'Australian'.
It seems strange that more than one hundred years after Federation
the legal position of Australian-born children will only now be
fully addressed. But until 1986 this was not an issue, since
citizenship or formal membership of the Australian community was
bestowed on everyone who was an 'Australian-born subject' under the
common law. Only those classed as 'aliens' under ancient common law
rules were deprived of citizenship at birth.

The issue remained hidden after the 1986
amendment to the Citizenship Act because it was assumedincluding by
members of the High Courtthat 'non-citizens' were necessarily
'aliens'. This was not the case. But it was not until the recent
decisions in Taylor
(2001) and Te and Dang
(2002) that a majority of the High Court tackled the false
'citizen/alien' dichotomy head on. However these cases did not deal
directly with the constitutional position of people born in
Australia.

While the future of the East Timorese children
facing deportation in 2002 has largely been resolved, the current
prominence of migration and refugee issues made it inevitable that
other deportation matters involving families with 'Australian-born
subject' children would arise. Plaintiff
S441/2003 requires the High Court to decide exactly who
is an 'alien' under Australian constitutional law. There is no
direct precedent for the High Court to determine the constitutional
status of Australian-born children. But it seems doubtful that the
Court could abandon the common law distinction between an 'alien'
and a 'natural-born' subject. To do so would fracture 'the skeleton
of principle' behind use of the term 'alien' in the Constitution,
divesting the word of an inherent common law connotation.

If locally-born children such as the applicant
in Plaintiff
S441/2003 are 'non-aliens', there will be some
important consequences. Most significantly the purpose of the 1986
amendment to the Citizenship Act will largely be negated. It may be
that the amendment itself is held to be invalid, returning
citizenship to children born in Australia since that date to
temporary visa holders and other non-permanent residents. But even
if the High Court decides that removal of citizenship from
'non-alien' children was constitutionally valid, they will remain
'non-aliens'. Having authority to deny citizenship to such children
does not mean the Commonwealth can deem them to be 'aliens'. The
'stream and its source' doctrine prevents the Commonwealth being
the arbiter of who is or is not an 'alien' for the purpose of the
Constitution. Children who are 'Australian-born subjects' will be
part of the newly identified class of 'non-alien non-citizens'. The
Commonwealth will be unable to alter this status without amending
the Constitution itself.

Recognition by the High Court of an
'Australian-born subject' status equivalent in constitutional, if
not statutory, terms to citizenship would mean that locally-born
children have to be treated differently. Australian subject status
would protect children from forcible detention and deportation
under the Migration Act. It would also assist their families'
attempts to stay in Australia. In considering parents' appeals
against deportation, immigration officials would need to take
account of any children with such status. Courts would inevitably
regard the Australian 'nationality' of children as relevant to
decisions about the fate of parents.

Having a third national status to consider
alongside citizenship and permanent residency, however, might be
regarded as unwieldy. Parliament could therefore consider returning
to the pre-1986 position where all children born in Australiawith
the practical exception of foreign diplomats and consular
officialsautomatically become citizens. The failure to discuss
constitutional issues in 1986 might provide Parliament with a
reason to reconsider this issue.

A decision on whether Parliament should
re-consider the legal status of children born in Australia would be
assisted by information about the number of people directly
affected. According to the barrister representing Plaintiff S441/2003:

There are thousands of children born to parents
who are in detention or applying for refugee status, who have grown
up here as Australians, but face being sent away.
(205)

In contrast, after the 1986 amendment had been
passed by Parliament, the Human Rights Commission, despite having
recommended such a change, queried whether it was really necessary
to take citizenship away from Australian-born children:

it is of the view that the risk can be
over-stated. It considers the suggestion that 'the floodgates'
might be opened is without foundation. Over the past five years,
the Commission has received only twenty-seven complaints (and two
inquiries) relating to Australian-born children whose parents are
under threat of deportation or have been deported Allowing all of
these persons to stay would hardly constitute a trickle, let alone
a flood.(206)

Accurate information on the 'migration
consequences' of a child's citizen status would also assist any
re-consideration. As Justice Brennan in Kioa and John Dowd from the
International Commission of Jurists both pointed out at the time of
the 1986 amendment, having a child born in Australia was merely an
argument that parents threatened with expulsion could put to
immigration officials. A citizen child never entitled the parents
to permanent residency or enabled them (without more) to avoid
deportation.(207) In addition, to the extent that there
was a real problem under the pre-1986 law withas Senator Chipp put
it'contemptible queue jumping' by illegal immigrants who
'mercilessly' gave birth in Australia so their infant children, as
Australian citizens, could sponsor them for permanent residency,
this appears to have been addressed by requiring sponsors to be a
certain age(208) and by new legislation tightening
sponsorship requirements.(209)

6.KimRubenstein, Australian Citizenship Law in
Context, pp. 11 and 93.

7.Human Rights
Commission, Report No 10, The Human Rights of Australian-born
Children: A Report on the Complaint of Mr and Mrs R.C. Au
Yeung, January 1985; Report No 13, Human Rights and the Migration Act
1958, April 1985; Report No 15, The Human Rights of Australian-born
Children: A Report on the Complaint of Mr and Mrs M. Yilmaz,
August 1985; see also Report No 18, The Human Rights of Australian-born
Children whose Parents are Deported, August 1986.

8.Transcript of
interview with John Dowd, 'Amendments to Citizenship Legislation
should be opposed because they affect the citizenship of children
born in Australia of illegal immigrants', P.M., ABC Radio, 18 March
1996.

25.7Co.Rep 18a, 18b; 77 ER 399. Lord Coke's
exposition of the common law on 'aliens' and 'natural-born
subjects' was referred to by Quick and Garran in their Annotated Constitution of the
Australian Commonwealth (1901) (at p. 599) when explaining the
'aliens' power in section 51(19) of the new Australian
Constitution.

26.Diplomatic Privileges and Immunities
Act 1967,
section 7.

27.Or, to
useProfessorZineslanguage, such a distinction is part
of the 'essence' of the term 'alien' as used in the Australian
Constitution: seeLeslieZines, The High Court and the
Constitution, 4th edition, p. 17.

28.175 CLR 1 at
2930.

29.United States v Wong Kim
Ark169 US 649
at 682, cited in Dawn E Johnsen, Acting Assistant Attorney General
Office of Legal Counsel, United States Department of Justice,
Testimony Before the
SubCommittee on Immigration and Claims of the United States House
of Representatives Committee on the Judiciary, on Proposed
Legislation to Deny Citizenship at Birth to Certain Children Born
in the United States, 25 June 1997.

30.United States v Wong Kim
Ark169 US 649
at 682, cited in Johnsen, Testimony Before the SubCommittee on
Immigration and Claims, op. cit., n. 29.

31.Johnsen,
Testimony Before the
SubCommittee on Immigration and Claims, op. cit., n.
29.

37.General
Direction Under Section 499 Criminal deportation under section 200
of the Migration Act 1958, issued21/12/98; Direction No. 21 (23/08/01)Visa Refusal and Cancellation under
Section 501, issued23/8/01, replacing Direction No 17 (issued
1999). MSI no. 254 The
Character Requirement: Visa Refusal And Cancellation Under
Section 501, issued:20/9/99. Ministerial Guidelines for the
Identification of Unique or Exceptional Cases Where It May Be in
the Public Interest to Substitute a More Favourable Decision under
s345/351/391/417/454 of the Migration Act
1958, Issued 4
May 1999. Under section 499 of the Migration Act, a person or body
having functions or powers under the Act must comply with written
directions from the Minister about how those functions and powers
are to be carried out.

38.Minister for
Immigration and Multicultural and Indigenous Affairs, Ministerial Guidelines for the
Identification of Unique or Exceptional Cases Where It May Be in
the Public Interest to Substitute a More Favourable Decision under
s345/351/391/417/454 of the Migration Act 1958, clauses 4.1,
4.2.3, 4.2.4 and 4.2.8. Emphasis added.

42.Human Rights
Commission, Report No 18, The Human Rights of Australian-born
Children whose Parents are Deported, August 1986, p.
3.

43.In the case of a
parent who obtained Australian citizenship by descent (i.e. because
one or both of his or her parents was a citizen), the parent must
have been present legally inAustraliafor at least 2 years at any time before
the registration of the child. (Citizenship Act section
10B).

44.Section 13 of
the Citizenship Act sets out the criteria to be eligible for a
grant of citizenship. The standard requirement is that the person
must be a permanent resident, over the age of 18 and have resided
inAustraliafor a period of 2 years in
the 5 years preceding the application, including a period of one
year in the 12 months before applying for citizenship.

45.Plaintiff s441/2003andMinister for Immigration and
Multicultural and Indigenous Affairs, Transcript,4 August 2003; see also Transcript,1 September
2003.

46.
Between 1992 and 1994 around 1650 East Timorese fleeing
persecution under Indonesian rule arrived in Australia. They
applied for political asylum and were granted temporary bridging
visas pending determination of their claims. A long delay followed
while the Commonwealth Government sought to persuade the Federal
Court and the Administrative Appeals Tribunal that Portugalthe
former colonial ruler of East Timorshould be the country of asylum
rather than Australia.

It was not until 2002, after
rejection of the Governments legal arguments, that Australian
immigration officials considered the first of the asylum
applications. By then East Timor had become the world's 191st
independent nation. (The
former Indonesian province gained independence in May 2003,
after its people voted for independence in a United Nations
sponsored ballot in 1999).

Since asylum claims are
assessed against current political conditions in the country of
origin, the East Timorese no longer met the necessary criteria.
Despite having been settled in Australia for many years, the
refugees now faced deportation to East Timor. Most had no future to
return to, and the East Timorese Government indicated that it could
do without the additional burden. As President Xanana Gusmao said,
the new nation was 'the poorest in Asia and among the 10 poorest in
the world'. (Herald Sun, 5 April 2003, p.
18.)

After months of extensive
lobbying, including directly from President Gusmao (Herald Sun, 5 April 2003, p. 18),
Australia's Minister for Immigration indicated in June 2003 that he
would use his discretion under the Migration Act 1958 to allow
nearly all of the East Timorese to remain in Australia.
(See Megan Shaw, '10-year
fight ends in joy for asylum seekers', The Age, 4 June 2003, p.
1.)

The Shadow Minister for Population and
Immigration,JuliaGillard MP, said however that 'While the granting
of these visas is a
relief for 397 East Timorese people, the fate of more than 1,000
other East Timorese applicants remains unknown. These people
continue to live in fear and uncertainty, not knowing if they will
be required to leaveAustralia'. (See 'Minister Ruddock bends under
pressure but needs to bend further', Media Release,10 June
2003).

53.'The hidden
dilemma of Australia's non-persons', The Australian, 26 January 1985,
p. 1; 'Illegal visitors find gap in law', Sydney Morning Herald, 7 May
1985, p. 3; 'Backdoor appeal shut to illegal immigrants',
Sydney Morning Herald,
18 October 1985, p. 2. It might be noted that current figures are
remarkably similar. The Department of Immigration &
Multicultural and Indigenous Affairs estimated 'visa overstayers'
at 60,000 as at30
June 2002(Fact
Sheet No. 86: Overstayers and People in Breach of Visa
Conditions at
http://www.immi.gov.au/facts/86overstayers.htm). As the
fact sheet notes, this figure 'does not include unauthorised
arrivals by air or boat'. The Migration Act requires such people to
be detained until granted a visa or deported. As at9 January 2003there were 1,176 people in
immigration detention (Fact Sheet No. 82: Immigration Detention at
http://www.immi.gov.au/facts/82detention.htm#3).

55.'Two year old
triggers review of deportation laws, Sydney Morning Herald,17 November
1984. See also
Kioa v West (1985) 159
CLR 550, e.g. at 629 (perBrennanJ.)

56.Kioa(1985) 159 CLR 550 at 62930
(perBrennanJ).

57.Kioa(1985) 159 CLR 550 at 634 (perDeaneJ).

58.Kioa(1985) 159 CLR 550 at 604 (perBrennanJ).

59.KimRubenstein, op. cit., n. 6, pp. 11 and
93.

60.Human Rights
Commission, Report No 10, The Human Rights of Australian-born
Children: A Report on the Complaint of Mr and Mrs R.C. Au
Yeung, January 1985; Report No 13, Human Rights and the Migration Act
1958, April 1985; Report No 15, The Human Rights of Australian-born
Children: A Report on the Complaint of Mr and Mrs M. Yilmaz,
August 1985; see also Report No 18, The Human Rights of Australian-born
Children whose Parents are Deported, August 1986.

61.Human Rights
Commission, Report No 10, The Human Rights of Australian-born
Children: A Report on the Complaint of Mr andMrsR.C.AuYeung, January 1985, p.4.

62.Human Rights
Commission, Report No 10, The Human Rights of Australian-born
Children: A Report on the Complaint of Mr andMrsR.C.AuYeung, January 1985, p. 4.

68.WhatSenatorChippmay have meant to say was that 'those
children become automatic citizens of this country and the parents
can therefore become permanent residents'.

69.Australia, Senate 1986, Debates, vol. S 115, p.
3562.

70.Transcript of
interview with John Dowd, 'Amendments to Citizenship Legislation
should be opposed because they affect the citizenship of children
born in Australia of illegal immigrants', P.M., ABC Radio, 18 March
1996.

71.ibid.

72.Australia, Senate 1986, Debates, vol. S 115, p.
3562.

73.Section
4(4).

74.Constitution
section 51(27). There is also an argument that deportation
provisions in the Migration Act can be validly characterised as
laws with respect to 'external affairs' (section 51(29)): see
Gummow and Hayne JJ in Re
Patterson; Ex parte Taylor (2001) 207 CLR 391 at 4745. In the
same case, however,KirbyJforcefully rejected any such argument
as 'unpersuasive' and 'untenable' (at 4967). AndMcHughJsaid the external affairs power 'could
not support legislation that would result in the deportation of a
person who was not an alien' (at 425).

75.The only
exception is if deportation of a 'non-alien' or 'non-immigrant' is
'sufficiently connected' to use of the Migration Act against a
person who is within its scope. Every power in section 51 of the
Constitution contains an implied 'incidental' power (DEmden v Pedder 1904 1 CLR 91).
Section 51(39) of the Constitution also confers an express power to
legislate in relation to any matter incidental to execution of any
power vested by the Constitution in the Parliament. This means that
use of the Migration Act in relation to 'non-aliens' or
'non-immigrants' can be valid if it is a reasonable means for
achieving an objective within the 'aliens' or 'immigration'
powers.

76.AngusandRobertson1901.

77.Official Record of the Debates of the
Australasian Federal Convention, Third Session,Melbourne,2 March 1898, vol. II, p. 1752.

78.ibid., p.
1768.

79.ibid. He added
passionately that:

'It is not a lawyers' question; it is a
question of whether any one of British blood who is entitled to
become a citizen of the Commonwealth is to run the riskit may be a
small riskof having that taken away or diminished by the Federal
Parliament! When we declare'Trust the Parliament,' I am willing to
do it in everything which concerns the working out of this
Constitution, but I am not prepared to trust the Federal Parliament
or anybody to take away that which is a leading inducement for
joining the Union.'

80.ibid., pp. 1753,
1754.

81.ibid., p.
1765.

82.Instead the
Constitution uses the terms 'subjects of the Queen' (sections 34,
117), 'people of the Commonwealth' (e.g. section 24) and 'people of
a State' (e.g. section 7). In their Annotated Constitution of the
Australian Commonwealth (1901), Quick and Garran explained
that 'In view of the historical associations and the peculiar
significance of the terms "citizens" and "subjects", one being used
to express the membership of a republican community, and the other
that of a community acknowledging an allegiance to a personal
sovereign, it was obvious that there might have been an impropriety
in discarding the time-honoured word "subject" and in adopting a
nomenclature unobjectionable in itself but associated with a
different system of political government.' (at p. 957).

83.Colev Whitfield(1988) 165 CLR 360 at 385.

84.Official Record of the Debates of the
Australasian Federal Convention, Third Session,Melbourne,2 March 1898, vol. II, p. 1763.

in my opinion there is to be deduced
from the existence and character of the Commonwealth as a national
government and from the presence of ss 51 (xxxix) [the incidental
power] and 61 [the executive power] a capacity to engage in
enterprises and activities peculiarly adapted to the government of
a nation and which cannot otherwise be carried on for the benefit
of the nation.

96.When the
Citizenship Act commenced in 1948, an 'alien' was defined as 'a
person who [was] not a British subject, an Irish citizen or a
protected person'. The Australian Citizenship Amendment
Act 1984 removed this definition, with effect from 1987. This
was part of a series of measures to remove formal discrimination in
favour of people with a British background (see Rubenstein, op.
cit., n. 6, p. 86). The Aliens Act 1947 was itself
repealed in 1984. The Aliens Act required the registration of all
'aliens' inAustralia. Since the Act was linked to the
definition of 'aliens' in the Citizenship Act, non-citizen British
subjects were exempt from this requirement. The Explanatory
Memorandum for the Aliens Act Repeal Bill 1984 said that theBillwould 'remove discrimination between
aliens and other non-Australian citizens thereby placing all
non-Australian citizens on an equal footing'.

97.(1982)
151 CLR 101 at 107108.

98.(2002) 193 ALR
37 at 64 citingJoyce [1946] AC 347 at 366.

99.Te and Dang
(2002) 193 ALR 37 at 88.

100.Taylor
(2001) 207 CLR 391 at 435.

101.
In Taylor, a
majority of the court accepted that such people 'shared allegiance'
with Australians to a 'common sovereign' and so were outside the
scope of the 'aliens' power.

102.Te and Dang (2002) 193 ALR
37 at 74.

103.Te and Dang
(2002) 193 ALR 37 at 54.

104.ChuKengLimv Minister for Immigration, Local
Government and Ethnic Affairs(1992) 176 CLR 1 at 25.

111.Tony Blackshield
and George Williams, Australian Constitutional Law and
Theory, 3rd edition, p. 758, citing Justice Fullager's
reference in the Australian
Communist Party v Commonwealth (1951) 83 CLR 1 to the maxim
that 'a stream cannot rise above its source'.

112.175 CLR 1 at
2930.

113.(1989) 168 CLR
461 at 537.

114.Or, to
useProfessorZineslanguage, such a distinction is part
of the 'essence' of the term 'alien' as used in the Australian
Constitution: see Zines, op. cit., n. 27, p. 17.

119.7Co.Rep 18a, 18b; 77 ER 399. Lord Coke's
exposition of the common law on 'aliens' and 'natural-born
subjects' was referred to by Quick and Garran in their Annotated Constitution of the
Australian Commonwealth (1901) (at p. 599) when explaining the
'aliens' power in section 51(19) of the new Australian
Constitution.

127.Under section 5
of the Migration Act, a 'substantive' visa is any visa except a
bridging visa, a criminal justice visa or an enforcement visa. A
'substantive' visa is generally required before applying for change
of status to permanent residency or citizenship.

139.While diplomats
and consular officials are not subject toAustralias jurisdiction, they are, of course,
protected by Australian law. Conversely, it might be argued that
asylum seekers and others who get no further than territory excised
from Australia's 'migration zone' come within Australian
jurisdiction but are not fully entitled to the protection of
Australian law, since they do not have access to the appeals
processes under the Migration Act.

140.Although
long-standing British migrants who have not been naturalized are
partial members of this category because they have the right to
vote (but cannot be elected to Parliament). Commonwealth Electoral Act 1918,
Part VII.

148.
Some of the locally-born East Timorese children are now
8 or 9 years old. (Source: DIMIA.) As noted in the text, they
automatically become citizens when they turn ten, provided they
have been 'ordinarily resident' inAustraliasince their birth in this country
(Citizenship Act, section 10).

164.Cunningham and Attorney-General for
British Columbia v Tomey Homma[1903] A.C. 151. Provinces such
asBritish
Columbiasuccessfully used their power over
electoral laws to restrict participation of non-Europeans in
commercial enterprises. As Head notes, 'Not surprisingly, inclusion
on the voter's list became a prerequisite for all sorts of economic
activity: for admission to a professional society; for obtaining
hand logger's licences; for obtaining a beer licence.'IvanHead, 'The Stranger in Our Midst: A Sketch
of the Legal Status of the Alien inCanada', in The Canadian Yearbook of International
Law, vol. II, 1964, p. 107 at 128.

165.Quong-Wing v The King(1914) 49 SCR 440, 18 DLR
121, 6 WWR 270. The law in question stated that 'No person shall
employ in any capacity any white woman or girl or permit any white
woman or girl to reside or lodge in or to work in or, save as a
bona fide customer in a public apartment thereof only, to frequent
any restaurant, laundry or other place of business or amusement
owned, kept or managed by any Chinaman.'

167.It is clearly
within the implied nationhood power for the Commonwealth to make
laws determining who should be recognised as formal members of the
Australian community. But it is unclear whether this extends to
denying statutory recognition through the Citizenship Act to
'natural-born subjects' who have Australian 'nationality'. A
'proportionality' test appears appropriate in this case, as, for
example, in Davis v
Commonwealth (1988) 166 CLR 79, where legislation prohibiting
the use of the expression '200 years' in connection with the 1988
bicentenary celebrations was held to be a 'grossly
disproportionate' use of the Commonwealth's executive power. Cited
in Zines, op. cit., n. 27, pp. 4748.

168.SeeMaryCrock, review of Rubenstein, Australian Citizenship Law in
Context in The Sydney
Law Review, vol. 25(1), March 2003, p. 126.

169.Nolan (1988) 165 CLR 178 at
192.

170.Taylor
(2001) 207 CLR 391 at 411.

171.Taylor
(2001) 207 CLR 391 at 412.

172.
Kim Rubenstein, op. cit., n. 6, p. 69.

173.Constitution of
the Democratic Republic of East Timor20 May 2002, Section 3(3); see also East Timor
Nationality Act (No 9/2002 of5 November 2002) Article 8(2).

179.Such a provision
could only be included by referendum in accordance with section 128
of the Constitution.

180.At 3031
(perBrennan,DeaneandDawsonJJ).

181.Migration Act
sections 189 and 198.

182.It might be
argued that if the implied nationhood power authorises withholding
of citizenship from Australian-born subject children (although see
note 167 above), it could also authorise their forcible detention
and deportation. However, while the High Court might conceivably
find that the capacity to decide whether any resident is a citizen
is 'necessary to give effect to the Commonwealth as a national
government', it would seem to take the nationhood power to another
level altogether to suggest that it authorises the forcible
deportation of any person, whatever their constitutional status.
Determining membership of the Australian community is an objective
that is plainly within an implied nationhood power. But deportation
of 'Australian-born subjects'i.e. people who in constitutional
terms are formal members of the communitysimply because they are
not statutory citizens does not appear to be an 'appropriate or
proportionate' means of achieving that objective (see the
discussion of proportionality in Zines, op. cit., n. 27, pp.
4748).

185.A valid exercise
of legislative power (e.g. in respect of 'aliens') 'extends to
matters which are necessary for the reasonable fulfilment of that
power' (Dixon CJ in Burton v
Honan (1952) 86 CLR 169 at 177).

190.While Lam seems to have resolved the
issue, some of the additional steps in Australian judicial
consideration of the Rights
of the Child Convention are worth setting out for the sake of
completeness. In Teoh,
Chief Justice Mason and Justice Deane noted that a 'legitimate
expectation' that decision makers would treat the best interests of
the children as a 'primary consideration' would not exist where the
Commonwealth had made 'statutory or executive indications to the
contrary'. (1995) 183 CLR 273 at 291.

Both the Keating Government (in May
1995) and the Howard Government (in February 1997) issued
statements providing an 'executive indication' that international
conventions and treaties should not give rise to such expectations.
SeeTonyBlackshieldandGeorgeWilliams, Australian Constitutional Law and
Theory, 3rd edition, pp. 766767.

In Tien (1998) the Federal Court
held that these attempts by the Commonwealth to override the
Rights of the Child
Convention were ineffective. According toJusticeGoldberg:

Notwithstanding the publication of [the
1997] statement, I do not consider that the statement has the
effect apparently intended. I consider that the reference to
'statutory or executive indications to the contrary' referred to
byMasonCJandDeaneJ in Teoh is a reference to indications
made at or about the time the relevant treaty is ratified.
Tien and Others v Minister
for Immigration and Multicultural Affairs (1998) 159 ALR 405
at 427.

JusticeGoldbergreferred to Ram (1996) where the Federal
Court said (in relation to the 1995 statement) that:

I doubt their
Honours contemplated a case where at the time of
ratification,Australiahad expressed to the world and to its
people its intention to be bound by a treaty protecting the rights
of children, but subsequently, one or more ministers made
statements suggesting that they at least had decided otherwise.
Department of Immigration
and Ethnic Affairs v Ram (1996) 69 FCR 431 at 4378, cited in
Tien (1998) 159 ALR 405
at 428

In TienJusticeGoldbergset aside the deportation of a parent
with an Australian-born child because the immigration official who
cancelledMrTien's visa 'did not grapple with the
obligation under the Convention to make the best interests of [the
child] a primary consideration.' (at 429).

His Honour emphasised thatAustralia's
ratification of the Convention created procedural not substantive
rights. This meant that if the immigration official 'decided not to
make the best interests of the child a primary consideration she
was bound to draw this decision to the attention of Mr Tien and
give him an opportunity to respond to it.' (at 4289).

However, according to the Federal Court
in Baldini (2000),
Ministerial directives issued under the Migration Act (see text and
note 1940 provide the 'statutory or executive indication' needed to
oust any 'legitimate expectation' based on Teoh that complying with the
Convention should be the primary issue in deportation matters. In
Baldini,JusticeDrummondstated that:

The Direction read with s.
499 of
the [Migration] Act is, in my opinion, a successful
attempt by the Legislature and the Executive to overcome the
difficulties referred to in cases such as Tienthat the Government of the
day encountered in seeking to displace the Teoh principle by Executive
action such as the issue of the Ministerial statements of 10 May
1995 and 25 February 1997... In my opinion...the Direction
contain(s) such an elaborate regime with which the Tribunal must,
by force of s.
499 of
the Act, comply in a case in which it is required to
consider the interests of a potential deportee's child that there
is no room for finding in Australia's ratification of the
Convention a basis for any legitimate expectation on the part of a
potential deportee that the interests of his child will be, in
terms of the Convention, 'a primary consideration'. Baldini v Minister for Immigration
& Multicultural Affairs [2000] 115 A Crim R 307 at
[30].

194.General Direction Under Section 499
Criminal deportation under section 200 of the Migration Act
1958,
issued21/12/98; Direction No. 21
(23/08/01)Visa Refusal and Cancellation under
Section 501,
issued23/8/01, replacing Direction No 17 (issued 1999).
MSI no. 254 The Character
Requirement: Visa Refusal And Cancellation Under Section 501,
issued:20/9/99. Ministerial Guidelines for the
Identification of Unique or Exceptional Cases Where It May Be in
the Public Interest to Substitute a More Favourable Decision under
s345/351/391/417/454 of the Migration Act 1958, Issued 4 May
1999. Under section 499 of the Migration Act, a person or body
having functions or powers under the Act must comply with written
directions from the Minister about how those functions and powers
are to be carried out.

195.
These directives
date from shortly after the Federal Court's decision in Tien
(1998). See note 190.

196.General
Direction No 9 paragraph 19. Emphasis added. Direction No 21
('deportation on character grounds') also instructs immigration
officials to consider 'whether the child is an Australian citizen
or permanent resident' (at paragraph 2.16).

197.Minister for
Immigration and Multicultural and Indigenous Affairs, Ministerial Guidelines for the
Identification of Unique or Exceptional Cases Where It May Be in
the Public Interest to Substitute a More Favourable Decision under
s345/351/391/417/454 of the Migration Act 1958, clauses 4.1,
4.2.3, 4.2.4 and 4.2.8. Emphasis added.

198.The particular
tribunal would depend on the nature of the application and the
grounds of appeal against deportation in individual cases. The East
Timorese families refused refugee status by the Immigration
Department appealed to the Refugee Review Tribunal. However in some
cases reviews can be sought from the Administrative Appeals
Tribunal or the Migration Review Tribunal. Once the relevant
tribunal has made a decision, the applicants may be able to appeal
to the Federal or in some cases the High Court. Alternatively, they
can request the Minister to use the discretionary power under
various sections of the Migration Act (sections 351, 391, 417 and
454) to 'substitute a more favourable decision' for the tribunal's
decision.

206.Human Rights
Commission, Report No 18, The Human Rights of Australian-born
Children whose Parents are Deported, August 1986, p.
3.

207.This remains the
situation today, as shown by the recent case of a Russian mother
facing deportation despite the fact that expulsion would separate
her from her young Australian citizen son. See Nevsky and Scott [2002] FamCA
860; see also Daily
Telegraph,11
August 2003, p.
7.

208.See Migration
Series Instruction (MSI) 353 Form 4 Sponsors And
Sponsorship, paras 3.2.13.2.2. In limited circumstances, a child
under 18 can have another person act as a sponsor on their behalf.
But this other person must themselves be over 18 and an Australian
citizen, permanent resident or eligible New Zealand citizen.
Alternatively, a 'community organization' may sponsor a parent on
behalf of a child (para 5.1.4).